This is out of my bailiwick and right in the middle of yours, but...it seems to me that while Rawls doesn't cite people like Croly (or Woodrow Wilson) he implicitly accepts much of their view of the proper balance between collective and individual action. Specifically, the whole device of the original position and people voting on how society should be arranged is a fairly technocratic way of looking at things--we collectively decide on the income distribution and other results-oriented matters and that takes precedence over classic freedoms of association, property, etc.

It is true that the Rawlsian vision is slightly less specific and results-oriented in its collectivism than is Crolyism, but it still amounts to deploying Leviathan for collective purposes in a way that treats society more as an organization than as an order, despite all the lip service paid to Millsian individual freedom. The practical problems of trying to enforce the supposedly "high-level" or "constitutional" commitments of the Rawlsian state require a highly anti-Millsian and intrusive state apparatus. Thus, we end up with federal prosecutors threatening local homeowner associations that try to lobby against public housing, classified ads being censored to prevent discrimination, printers forced to print ads for practices they find immoral and hateful, and so on. Actual, formal, implementation of Rawls's maximin principle, were it ever to occur, would lead to even more bizarre interventions of this kind.

I think Rawls simply assumes from the start that the Croly/Wilson view of the proper role of government is OK and doesn't need to be defended; I haven't read him in quite a while, but I don't recall him ever making an argument about why collective determination of end-states is morally appropriate in the first place. All he really does is bound the set of collective objectives which the Crolyist state is morally allowed to pursue.

To which I replied:

At some level of course I agree with you-- which is why, after all, I'm a Hayekian not a Rawlsian. But I do think the defense of civil liberties is much more than lip service, and distinguishes Rawls in a fundamental way from the progressives. I think one roughly-accurate shorthand is: Rawls is the progressives minus Hegel. But that's a very, very, very big difference. The progressives and the original self-proclaimed new liberals like Green and Hobhouse were Hegelian through and through; their understanding of society really was holistic and organic, and it really was the society over the individual, each and every time.

The Rawlsian contract device is subject to the criticisms you (and Nozick) make of it. As far as I'm concerned it doesn't sufficiently respect, in Rawls' own phrase, "the separateness of persons." But what a phrase! The progressives would never have accepted that as a foundational moral standard.

In any event, the Rawlsian contract is not that kind of Hegelian move. It's an attempt to replicate liberal rule-of-law intuitions in a way that's admittedly more Kantian than Lockean but that owes very little to either Rousseau or Hegel. It's not dissimilar in kind (despite protestations from both sides) to the Buchanan and Tullock contractarianism that has impeccably libertarian credentials. Using an original contract as a heuristic might be a bad idea, but it's not sufficient to build an indictment of collectivism or holism. I don't think Rawls' moral individualism goes far enough; but I do think he's quite clearly and strongly a moral individualist, in a way that's very different from progressivism or social democracy. The fact that they all believe in the legitimacy of substantial state action to redistribute property and regulate economic transactions doesn't make them all the same.

Two further things [self-quotation's over now]. One is: I am utterly agnostic, which is to say ignorant, on the question fo whether the Anglo-American left-Hegelians of the late 19th and early 20th centuries understood Hegel correctly, whether Hegel reall ywas as holistic and collectivist as the lessons people took from him suggest. This is on the list of matters about which to acquire an informed opinion before finishing my second book. (Yes, there really is such a list, and yes, this really is on it.) But I have no opinion at the moment.

The second is: I saw someone, in a comments section somewhere that I now can't find again, [UPDATE: Whoops, it was Peter Levine, on his own blog) say that contemporary American left-liberals owe intellectual debts, not to philosophers, but to political and judicial leaders (MLK, LBJ, FDR, Earl Warren). Now, there is something to this. The conservative and libertarian embrace of intellectual work came, in part, as a rebuilding strategy during a half-century of being shut out of power completely. The equivalent intellectual energy on the center-left went into actually doing stuff in government or on the courts. When I look back to the 40s for a forbear, I see Hayek or Rose Wilder Lane, and a conservative sees Kirk, but a left-liberal at least might see Truman or Frankfurter.

But I also think this is easily overstated. Contemporary left-liberalism certainly doesn't owe very much to the legal realism that was one of the major intellectual movements on the center-left in the first half of the twentieth century, and that apparently captured the Supreme Court for a while. Richard Posner and the crits are the heirs-apparent of legal realism, while the liberal legalist attempt to rationalize the Warren Court (e.g. Dworkin) has remarried a kind of legal formalism with a moral-realism-that-dare-not-speak-its-name. Dworkin owes as little to Felix Cohen as Rawls owes to Croly. I think if you asked the roomsful of College Democrats Goldberg mentions how many believed that we really do have individual rights like freedom of speech and sexual/ reproductive freedom that the courts are morally and legally bound to uphold, you'd get a lot of hands these days. In the 30s, that would have been thought hopelessly bourgeois, superstitious, or both. Similarly, a contemporary American left-liberal might find him- or herself inspired by FDR's speeches, but also remembers the internment of Japanese-Americans and even the court-packing plan as bad and illiberal. The Great Society might be a phrase to warm some hearts, but the reality of LBJ isn't a very fond memory.

UPDATE: John Rosenberg thinks I may be understating the degree of liberal legal realism still prevalent. But most of his examples seem to me cases of thinking that the real content of our rights is something other than what Rosenberg thinks they are, e.g. thinking that our real right to free speech does not include a right to hate speech, rather than thinking that there are no real judicially-enforceable rights. Indeed, he seems to imply that Dworkin is a realist, which just can't be right, on the grounds that Dworkin supports racial preferences. It might be that Dworkin and all the Warren Court liberals like him are deluding themselves, that they really are just seeking to impose their own partisan policy preferences. But it's a big difference from the realists that they deny this is what they're doing, and say it would be illegitimate to do.

Friday, May 21, 2004

One often hears that no Amendment has ever amended the Bill of Rights. (Let's set aside whether various restraints on state power amend the Tenth Amendment, and let's set aside the many times that the Supreme Court has in effect amended the Bill of Rights.)

It turns out, though, that this probably isn't quite true. Two constitutional amendments have indeed likely amended two parts of the Fifth Amendment:

In Dred Scott v. Sandford (1857), the Supreme Court struck down a federal statute that declared many territories to be free, so that slaves who were taken there by their owners were liberated. The statute, the Court held, violated the Due Process Clause by wrongfully depriving owners of their property. It seems pretty clear that nationwide abolition would have likewise been a violation of the Due Process Clause under Dred Scott. The Thirteenth Amendment in effect modified the Fifth Amendment to make clear that slaveowners could indeed be deprived of their property in slaves. (Of course, one could argue that this didn't really amend the Bill of Rights as it should have been understood, but only as the Court misunderstood it -- but the backers of most proposed amendments of the Bill of Rights would say the same about their proposals.)

Even if depriving slaveowners of their property was constitutional, it might well have required the government to pay compensation. The Supreme Court had never passed on the matter, but as I understand it many people of that era assumed that compensation would be required, and some statutory emancipation schemes did indeed provide for compensation. Section 4 of the Fourteenth Amendment provides that "neither the United States nor any state shall assume or pay . . . any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void." This of course does more than reject a right to compensation -- it actually prohibits compensation even as a matter of voluntary legislative judgment. Still, it probably did in some measure alter the then-existing understanding of the Just Compensation Clause.

The same section of the Fourteenth Amendment also modifies the Free Speech Clause, by providing that "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned." No, I'm just joking about that, though I've seen some constitutional theories that make about as much sense as that.

I don't want to suggest that these items are especially helpful to modern debates: I think the "it's inherently wrong to amend the Bill of Rights" arguments are unsound, but while these examples do in some small measure help show that sometimes the Bill of Rights need changing, I don't think they're really that relevant. But I just think they might be interesting historical tidbits for those who like this sort of thing.

A word about the ongoing discussion (begun by Jonah Goldberg) of whether contemporary left-liberals are more ignorant of their movement's intellectual history than conservatives or libertarians are of those of their movements.

One of Goldberg's correspondents mentionsJohn Rawls. I think Rawls may be significant in quite a different way. It is Rawls who most clearly represents the liberalism of contemporary left-liberalism. That is, it is Rawls who synthesized a robust welfare state, strongly egalitarian anti-discrimination throughout the (public and private) basic institutions of society, and a first-order commitment to civil liberties and individual social and religious freedom. This was neither social democracy nor the Old or New Left, neither identity politics nor vanguardism. It held together a number of things that were widely-believed-in among the Cold War liberal elite as well as substantial parts of the northern Democratic coalition, but excluded much that was important to the student left of the 60s, among other groups. And it's more-or-less orthodox today among the people Goldberg means by left-liberals. There are, of course, people farther left than left-liberals, people who reject what they see as Rawls' compromises with the market, his individualism, and so on. But there are people too far right to quote Russell Kirk, too.

Now here's the interesting bit: Rawls' account of the intellectual history of his kind of liberalism is not littered with references to American figures like Croly or Bellamy (leftists but not liberals). A college student picking up Theory of Justice will more or less come away with the impression that no political theory had been written since Mill. There was Kant, and there was classical utilitarianism, and there was Mill... and then there was John Rawls. Other philosophers are discussed, of course. But Rawls describes pre-1971 political thought as basically stuck between 19th-century utilitarianism and Aristotilean/Christian perfectionism. The twentieth-century progressives and social democrats and Marcuse-types are almost nowhere to be seen. (Neither, of course, are major figures from Strauss to Arendt to Hayek.)

And in a weird but real sense Rawls was right-- not as an account of intellectual history, but as an account of the intellectual history of welfare liberalism. Early-twentieth-century American leftists weren't his intellectual history; Mill and Kant were. Goldberg keeps suggesting that left-liberals are ignorant of "their" history. But I'm not sure in what sense it's supposed to be "theirs." Some contemporary leftists say things that Harrington or Galbraith, Hofstadter or Schlesinger or Beard, Croly or Bellamy, or Cole or Laski, or James or Dewey, also said. But that doesn't mean that there's a direct line of influence from the earlier figures to today's. It's one thing to be ignorant of the sources that have influenced one's thinking. It's another to be ignorant of other people who've occupied a position on their day's political spectrum something like the one you occupy on yours.

To the degree that todays left-liberalism is Rawlsian, I don't know that it really does owe much to the non-liberal left of the late 19th/ early 20th centuries. Other than Keynes and Isaiah Berlin, I kind of doubt that there are many intellectual figures between Mill and Rawls who really do exercise ongoing influence on the structure of left-liberal thought. I certainly think that Berlin is has more ongoing influence than Croly; Berlin is more truly part of "their" intellectual heritage. And it's not as though no one ever talks about Berlin.

(The postmodernist, poststructuralist, post-Marxist far left is quite different; it's mainly an academic movement anyways, and its adherents know their Marcuse and Arendt, Heidegger and Foucault, Gramsci and Neitzsche. But those figures really aren't part of the intellectual heritage of a mainstream contemporary American left-liberal.)

By contrast, contemporary American libertarianism has a pretty continuous and longstanding line of descent. Many of us studied directly with people who studied with at least one of Rothbard, Rand, Hayek, or Friedman. Rothbard and Hayek were both students of Mises', who was a student of Menger's-- and by now we've got an unbroken line almost all the way back 'till Mill's time. There's early- and mid-20th century work that genuinely does shape libertarian thought in a way that Croly or Bellamy just don't shape contemporary left-liberalism.

For many months (or is it years?) I have been reading Eugene and others singing the praises of Neal Stephenson here at VC. I had read parts of Snow Crash a few years ago but wasn't impressed. Finally I picked up Cryptonomicon and read it through. I loved it and was overwhelmed. Stephenson has an amazing mind. Somehow he manages to combine a thriller, science fiction, and serious fiction all at once. I expect people will still be reading this one a century from now. Give it a try if you don't already know it, and don't be put off by the length, namely 1168 pages. I like to ask Samuel Johnson's question: did we wish the book were longer than it was? In this case the answer is a clear "yes." So I just might be tempted to try the Quicksilver cycle now...

Paul Craig Roberts writes, via email: "David Bernstein is an example of yet another academic lawyer who thinks Brown was about southern segregation. Brown was a consolidation of five cases, 60% of which were from outside the south. The name of the lawsuit is Brown v. Board of Education of Topeka. Kansas is not a southern state."

Admittedly, only Briggs arose in the Deep South. However, as Mike Klarman points out in From Jim Crow to Civil Rights, the reason these cases arose in the border states is that the Deep South was so authoritarian, that neither black plaintiffs nor attorneys could be found to bring cases in states such as Mississippi and Alabama--they were not willing to risk the economic and physical reprisals such litigation was likely to bring. Thus, if the Court wanted to invalidate Jim Crow in the Deep South, it need to use cases brought in the Upper South and border states.

Stuart Benjamin raises the interesting question of whether depriving the government of tax revenue actually limits government spending. Here is a link to relevant research by Bill Niskanen, a fine economist. As resident economist on VC, I thought I would offer a few observations:

1. The time period under consideration, 1981 to 2000, is a very short one. How many data points do we really have? If you count a term of an administration as a single data point, we have only five data points.

2. In this sample period, "starving the beast" doesn't seem to keep spending down. This ought to shake our belief that the evidence suggests that cutting taxes will keep down spending. But given the small number of data points, and the difficulty of specifying the correct macroeconomic model, I would not draw any lesson beyond agnosticism.

3. Has there been a structural shift in this problem since 1981? Maybe we have had two Republican Presidents, Reagan and Bush, who think that America is so great that deficits don't matter very much. That is the simplest explanation, though of course not the only possibility.

4. The cited result that divided government keeps down spending is usually true, though of course the Nixon years are an exception.

5. The hard-core advocates of the "starve the beast" strategy probably would argue we have yet to try it. After all government spending, including domestic spending, is now higher than ever before. A few tax rates have been cut but many other rates have a higher bite than before. The AMT matters more than ever before. Is it "starving the beast" to throw a few trillion Twinkies at the gorilla in the cage?

6. That being said, a real strategy of starving the beast is not politically feasible in today's world or anytime soon.

7. If you really wish to pursue this question, it is my belief that Kevin Hoover is one of the top experts.

1. The same Seattle ordinance, I realized, prohibits discrimination based on "political ideology," defined as "any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group." So the hypotheticals I gave in this paragraph

Whether or not we agree with her, I think we must acknowledge that [the coercion of the printer] is a significant loss of freedom for her — just as it would be a loss of freedom to force an ethical vegetarian building contractor to help build a meatpacking plant, to force a militant Democrat printer to print Republican flyers, or to force a pacifist mechanic to help repair tanks that are on their way to the battlefield.

could actually take place. A virulently anti-gay group could go to a gay, pro-gay-rights printer and demand that he print their flyers — and he'd have no right to refuse.

2. Several readers asked whether this might violate the printer's First Amendment rights not to be compelled to speak. That turns out to be a tough question. Under the First Amendment, publishers generally can't be required to include into their existing publications things that they don't want to include; for instance, some recent attempts to force newspapers to run coverage of same-sex weddings alongside coverage of other weddings would almost certainly violate the First Amendment. But it's not clear whether printers have a similar right not to be forced to print standalone materials, which won't interfere with the printer's other speech, and which probably won't be associated by readers with the printer.

The strongest argument on the printer's behalf, I think, would be based on the Abood v. Bd. of Ed. line of cases, which held that people may not be forced to contribute money to unions, state bars, and other such groups, when that money will be used for ideological advocacy. There are some exceptions, see, e.g., Southworth v. Bd. of Regents (student fees at public universities), and of course the government may force people to give money to the government itself (via taxes) even when that money will be used for ideological advocacy. But this is still the basic rule.

It seems to me that forcing people to actually do work on producing speech they disapprove of (not just when they're government employees, but when they're private citizens that the government is regulating) is at least as much of a First Amendment problem as forcing them to contribute money that helps produce speech they disapprove of. One possible distinction is that here the speech isn't overtly political; but an invitation to a same-sex marriage is these days (for better or worse) a political statement, often intended as such and often perceived as such.

The best arguments against the First Amendment claim, I think, would point to the PruneYard and Turner Broadcasting cases. PruneYard upheld a requirement that owners of large shopping centers allow speakers to use their property; Turner upheld a requirement that cable operators carry certain cable channels. But Turner, I think, was a special case because of the cable operator's monopoly power. And the law in PruneYard was less burdensome on the property owner — there the shopping center owner simply had to let speech onto his property; here the business owner would have to directly, and quite possibly personally, work in the actual production of speech that he disapproves of. Nonetheless, the compelled speech doctrine is messy enough that it's impossible to tell for sure how a court would (or even how it should, given the precedents) come out on this.

3. Finally, the Washington Constitution has been interpreted as providing religious objectors with a right to get exemptions from laws that burden their religious practices, unless the law is "narrowly tailored to a compelling interest." Thus, if the printer had a sincere religious objection to printing the invitations (and not just a philosophical objection unrelated to her religious beliefs, if any), then she might be entitled to a religious exemption, unless the court concludes that the law is indeed "narrowly tailored to a compelling interest." The track record of such exemption claims (mostly raised by landlords who claim a religious obligation not to rent to unmarried couples, and who thus want to be exempted from state laws that ban marital status discrimination in housing) has been mixed. Naturally, litigating to get such exemptions (even if you do have a sincere religious objection to the behavior that you're being required to engage in, which isn't clear as to this particular woman) is not easy and not cheap.

Several email correspondents have reported that they have been deafened by the silence of leading Democrats on Fritz Hollings' claim that a Jewish cabal is running American foreign policy forthe benefit of Israel.

Anytime I make any reference to the fact that George W. Bush has been pursuing some objectively liberal policies, I get slammed in the blogosphere, and also get hostile email denying that anything W. has done could be construed as liberal. What I mean by objectively liberal is simply that if the same policy was pursued by, say, a Gore Administration, it would win praise from liberals. Some obvious examples that come to mind are (1) the new Medicare drug entitlement; (2) the massive increase in federal education spending; (3) increased funding (proposed) for the National Endowment for the Arts; (4) the general huge increase in discretionary federal spending, including spending on infrastructure projects (what Bill Clinton called "investment"); (5) close attention to affirmative action concerns in excecutive appointments. Imagine that Al Gore, facing a Republican Senate and House, had managed to enact any of these policies. Is there any significant doubt that while liberals may have found these policies imperfect in various ways (e.g., the drug program doesn't include price controls), they would be praising his political acumen in winning these victories for Progressivism? And at least some liberals would also be praising Bush's protectionism, though among them would not be the more clever liberal bloggers.

The strangest emails I get furiously protest that Bush's education spending has been accompanied by expensive unfunded mandates. The objection, at least in the emails I have received, is not simply to the content of the mandates themselves (testing and whatnot), but to the idea that Bush should be allowed to claim credit for increasing education funding while also imposing huge costs on public schools. Yet federal education policy since the 1960s has imposed huge costs on public schools--requirements to provide expensive educational help to physicially and mentally handicapped students, bilingual education requirements, etc. It was always conservatives, not liberals, who opposed these federal interventions on principle, and who noted that federal "aid" to education comes with expensive and often counterproductive strings. As I've noted previously, conservatives have long objected to replacing what they see as a flexible, local system, with a federal one that would feed the bureacracy instead of helping students. Moreover, I'm old enough to remember that in the 1980s it was liberals who argued that mandatory nationwide testing was the solution to America's educational problems, while conservatives furiously objected that testing is no substitute for sound education. I am wondering how many liberal critics of Bush's "unfunded mandates" want to repeal, say the Individuals with Disabilities Education Act, or remove the applicability of Section 504 of the Rehabilitation Act to public schools.

I've also discovered that Democratic propaganda on the Medicare prescription drug benefit has been so effective that some of my correspondents believe that the program is simply a giveaway to the drug companies, with literally no benefit to seniors. One correspondent even belived that theRepublicans have replaced a previously existing generous Medicare drug benefit with one that won't benefit a single senior.

The actual basis of the idea that the drug benefit is a giveaway to the drug companies is simply that there are no price controls as part of the package, and drug companies will therefore benefit from the plan. Yet physicians were among the primary beneficiaries of Medicare for its first two decades; their income soared as the government generously reimbursed basically any and all doctor visits from the over-65 set. Where are the retrospective condemnations of Medicare as a "giveaway" to the doctors?

The failure of liberals to give Bush credit for pursuing policies that they would normally desire reminds me of nothing as much as conservatives' unwillingness to give Bill Clinton credit for holding down federal spending during most of his term, signing the welfare reform bill, or encouraging free trade. In both cases, the president's opponents are consumed with a visceral distaste for the man, and see any "positive" policy he pursues as a mere cynical ploy to achieve additional power so he can puruse his "real" ultra-liberal (Clinton) or "right-wing"(Bush) agenda. (E.g., Mark Kleiman: "It's only marginally obvious that betraying conservative principles in the service of right-wing interests and political gain also doesn't bring you closer to liberalism.") I am more inclined to assume that they are both pragmatic politicians, doing what politicians generally do. Sure, Clinton was inclined toward liberalism, and Bush toward conservatism, but neither of them would let ideology get in the way of purely political ends on most policy matters (I think Clinton had a genuine, if somewhat shallow, commitment to racial equality, and Bush has a genuine commitment to his vision the War on Teror). In other words, Clinton and Bush are typical politicians trying to govern from the center while placating their parties' base, much more alike than they are different, and the constant attempt by partisans on either side to pretend otherwise is grating.

Thursday, May 20, 2004

Early on weekday mornings, as Lesley-Anne Jones implores her three sons to button their shirts and knot their ties and tie their dress shoes, they ask why they can't attend her school. If Ms. Jones wanted to be factual about it, she could say that the family lives just outside the boundary for Public School 158 in the East New York section of Brooklyn, where she teaches fifth grade. Instead, she tells them the deeper truth. "I'm your mother, and I know what's good for you," she explains. "And the public school won't be."

Then she drives the children to a nearby private school, the Trey Whitfield School. Every month, she and her husband send the school a check for $900, the equivalent of almost two weeks' take-home pay from her job. They make the sacrifice because Trey Whitfield offers their children a demonstrably safer and better education than what is available at either P.S. 158 or their local school, Public School 149

There is nothing effete about the private education at the Whitfield School. Its campus consists of three cinder-block barracks tucked behind a Baptist church. The curriculum eschews the fashionable pedagogies of whole language and constructivist math. From pre-kindergarten to eighth grade, every pupil wears a uniform. And not a single child in a student body of 470 is white. . . .

Mark Lemley, now of Stanford, has an excellent and readable new article on intellectual property; I just read it and highly recommend it. Here's the abstract:

The traditional theory of IP is that the prospect of future reward provides an ex ante incentive to innovate. An increasingly common justification for longer and more powerful IP rights is ex post -- that IP will be "managed" most efficiently if control is consolidated in a single owner. This argument is made, for example, in the prospect and rent dissipation literature in patent law, in justifications for expansive rights of publicity, and in defense of the Bono Copyright Term Extension Act. Taken to an extreme, this argument justifies perpetual protection with no real exceptions. Those who rely on this theory take the idea of IP as "property" too seriously, and reason that since individual pieces of property are perpetually managed, IP should be too. But IP isn't just like real property; indeed, it gives IP owners control over what others do with their real property. The ex post justification is strikingly anti-market. We would never say today that the market for paper clips would be "efficiently managed" if put into the hands of a single firm. We rely on competition to do that for us. But that is exactly what the ex post theory would do.

In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored.

The whole article should be available for free here or, if that doesn't work, here.

I think your guess is basically correct. Countercyclical effects appear to count for some of the negative relationship, but not a lot of it. I believe that they chose 1981 to 2000 in part because it covers full economic cycles (and, of course, allows for looking at whether decreases in tax revenues were associated with lower spending in future years, as the "starve the beast" hypothesis would predict).

Relatedly, here's another puzzle from their paper: they also find that the level of federal spending and federal tax revenues was positive between 1949 and 1980. So why did the relationship between spending and revenue flip from being positive (i.e., consistent with the "starve the beast" hypothesis) to being negative (i.e, inconsistent with it)? Niskanen and Van Doren ask this question and propose the following tentative answer:

We do not know, but we suspect that the growing influence of the "supply siders," who have a good case that high marginal tax rates substantially reduce economic growth, undermined the influence of the traditional fiscal conservatives' commitment to a balanced budget. Suggestions are welcome.

I find this explanation less satisfying than their explanation for the negative relationship, but I must admit that I don't have any better hypotheses. So let me repeat their plea for suggestions that could explain this.

More on Brown and Democracy:
I reviewed Paul Craig Roberts' coauthored book, The New Color Line, for Reason eight years ago, and made a point similar to Matthew Yglesias' (see Eugene's post below): "But the emphasis on Brown's anti-democratic tendencies begs the question of whether the South, especially the Deep South, was truly democratic before the Voting Rights Act was passed in 1965 and the black masses finally were able to exercise the franchise. In fact, Roberts and Stratton never consider this issue."

Also, on the question of whether the Brown decision was based on the Fourteenth Amendment or on social science evidence, my understanding has always been that the Court threw in the social science evidence as a way of placating the white South. Instead of saying, "you guys are racist pigs who have been oppressing blacks for three hundred years," which would have been apt but impolitic, the Court said, "you segregated blacks in public schools at a time when you didn't know how harmful it was to them. Now that modern social science evidence has demonstrated the harm, of course you wouldn't want to continue this segregation." This didn't work, of course, as the white South would not be placated on the issue of school segregation. As Mike Klarman points out in his wonderful new book From Jim Crow to Civil Rights, white Southerners were more committed to school segregation than to any other aspect of Jim Crow.

After Brown, the Court proceeded issue a series of opinions that invalidated segregation in public parks, golf courses, etc. These were short per curiam opinions that contained no legal reasoning, but they clearly didn't depend on the alleged psychological harm attendant to separate education. Rather, they were obviously based on a commitment to a formalistic interpretation of "equal protection of the laws" under the Fourteenth Amendment.

Finally, one more relevant quote from the review: "In the long run, the ultimate victims of racialist thinking are likely to be America's traditional scapegoats, blacks, who continue to be vulnerable to political demagoguery because of their high degree of social separation from dominant white America. Roberts and Stratton, however, myopically suggest that racialist thinking might lead to an outbreak of violence against white males. [!!!]In fact, white males have held, hold, and will continue to hold for the foreseeable future a dominant position in American society. Affirmative action itself, in fact, is a creature of elite white males: senators, congressmen, presidents, Supreme Court justices, cabinet officials, university presidents, corporate CEOs, and so on. Elite white males could also end it any time they wanted to."

This is probably a "of course we thought of that" kind of question, but: Stuart, for those os us who haven't read either version of the paper-- do the authors show that the relationship is inverse even after countercyclical effects are taken into account?

That is, in a recession, spending rises and taxes fall automatically. The reverse happens under conditions of robust growth. Not all spending or all taxes change in these ways, but, e.g., income and capital gains taxes move rather a lot in response to the business cycle, as do unemployment benefits and-- prior to welfare reform-- welfare payments. It seems to me that this could account for a great deal of the inverse relationship they note, no? (I expect the answer to be, "Yes, it accounts for a lot, but they show that it doesn't account for all"-- just figured it would be worth getting the issue onto the table.)

Of course, one could also imagine a combination rational-expectations/ supply-side theory, as follows: when spending rises, regardless of whether it's financed by current taxation or deficit spending, people respond as if they're faced with a tax increase (because, eventually, they will be). Therefore there's an economic slowdown, therefore current tax revenues fall. Conversely, a spending cut is interpreted as a cut in (the present discounted value of all future) taxes, and supply-side effects kick in, improving growth and increasing current tax revenues. I doubt that this could be very much of the explanation, but again, just thought I'd mention it.

Update:

Kevin Drum links to the paper itself (pdf). I think the answer to my first question above is complicated. For spending and taxation the authors use expenditures/ revenues as a share of GDP. That's entirely reasonable, probably even standard. But it complicates the countercyclical issue by putting GDP into the denominator. If this year GDP is 1000 and tax revenues are 200 (for a ratio of .2), and next year GDP falls to 950, tax revenue is designed to fall to some point below 190, and to give a ratio below .2. Using the revenue-GDP ratio will show a countercyclical effect, but a small one; the ratio might fall from .2 to .19, a 5% drop. Actual revenue will fall from 200 to 180.5, almost a 10% drop.
Conversely, putting GDP into the numerator of the spending side exaggerates countercyclical spending increases. During boom times, it will exaggerate spending decreases and understate tax increases.
And then, to complicate matters further, unemployment is (as Kevin notes) part of the equation-- but only on one side. That is, unemployment is allowed to affect changes in spending but not changes in tax revenues, which are taken as independent.
Figuring out how all of this adds up is the sort of thing that kept me in political theory and away from the kind of statistical social science that my wife does. I can't wrap my head around whether all of this yields an adequate modelling of countercyclical effects or not. I'm happy to give the authors the benefit of the doubt-- I sure wouldn't want to go before the Public Choice Society with a basic modelling mistake in my equation, and Niskanen's building on a paper that was published a while ago, so if the model were wrong others probably would have caught it by now. But it seems odd to me. I think there's collinearity between unemployment and taxation/GDP-- as unemployment rises, Tax/GDP falls, independent of the effect either has on spending/GDP. On its face, that's a problem. Maybe it's the problem that "autoregression" solves; my education ran out before we got to autoregression. But my impression is that autoregression is a way of dealing with time effects.
The semi-supply-side theory mentioned above seems unaddressed and as compatible with the results as the guess that the authors venture. Distinguishing between these would require some pretty complicated work.
A word about the paper's other big idea, which Kevin also picks up on:

American participation in every war in which the ground combat lasted more than a few days - from the War of 1812 to the current war in Iraq - was initiated by a unified government. One general reason is that each party in a divided government has the opportunity to block the most divisive measures proposed by the other party.

Well, maybe. But maybe it's that, in times of objective external security threat, there's a tendency on the part of voters to rally 'round the President and reward his party, or otherwise to generate unified government. There is, after all, usually a period of security threat that precedes the outbreak of war; and during those periods voters might decide that divided government is a luxury they can't afford. It's not the case, as the authors suggest, that the only alternatives are sheer coincidence< and unified governments are unrestrained in their pursuit of 'divisive measures.'
NB: I am not not not an economist, or even a quantitatively-trained public choice political scientist. I'm talking way out of my depth here, and Niskanen is a very prominent and respected public choice scholar. But the authors freely acknowledge that their explanations are guesswork, not uniquely dictated by anything in their results. I'm trying to think through some alternative guesswork explanations.

Update again:

I checked with the in-house statistician about autoregression, and she confirms that it's the "this year is basically similar to last year" term. The autoregression soaking up all the explanatory power means that the model has no explanatory power for change over time. This is apparently a not-uncommon problem with time series data and makes working with them difficult.
I also asked her whether it was common to do as the authors did and report coefficients and standard errors but not p-scores; political scientists routinely either report the p-score or graphically represent them (* p

I've run across a fascinating paper by William Niskanen and Peter Van Doren of the Cato Institute (which Niskanen has kindly allowed me to quote). In a paper that Niskanen published in 2002 and that Niskanen and Van Doren have just updated (and presented to the Public Choice Society), they discuss the "starve the beast" hypothesis -- the idea that reductions in federal tax revenues will produce reductions in federal spending. Strikingly, they find that:

The problem with this hypothesis is that it is not consistent with the evidence, at least since 1980. Niskanen's article published in 2002 presented evidence that the relative level of federal spending over the period from 1981 through 2000 was coincident with the relative level of the federal tax burden in the opposite direction; in other words, there was a strong negative relation between the relative level of federal spending and tax revenues. Controlling for the unemployment rate, federal spending during this period increased by about one-half percent of GDP for each one percentage point decline in the relative level of federal tax revenues.

Their paper presents their data in some detail, and the presentation is pretty convincing.

How to explain this inverse relationship between spending and taxation? Here's their take:

What is going on? The most direct interpretation of this relation is that it represents a demand curve -- that the demand for federal spending by current voters declines with the amount of this spending financed by current taxes. Future voters will bear the burden of any resulting deficit but are apparently not effectively represented by those making the current fiscal choices. One implication of this relation is that a tax increase may be the most effective policy to reduce the relative level of federal spending. On this issue, we would be pleased to be proven wrong.

I can't think of a better explanation. But, in any event, the data are startling.

Thurgood Marshall was one of them when, in the climax of the NAACP's campaign to end segregation by judicial flat, he stepped up to the Supreme Court's podium at 3:15 P.M. on December 9, 1952. It was strange that the great moral issue of the day was being debated in the Supreme Court instead of across First Street in the U.S. Congress or in state legislatures.

Now normally the point of this sort of complaining is that judicial action runs contrary to majoritarian democracy. Given the reality of the Jim Crow South, however, majoritarian democracy could hardly have been said to be in play. We're talking a time before the Voting Rights Act when African-Americans couldn't participate in the political process and when many poor whites were also disenfranchised. . . .

Keep Trying discusses the decline of the blogroll (thanks to InstaPundit for the link), and a commenter writes:

I think it has quite a bit to do with the relative lack of tools to deal with blogrolls. You have Blogrolling, which requires your page to call out to separate server and has a decidedly clunky interface; you also have Movable Type which has no interface for managing blogrolls whatsoever. Blogger, AFAIK doesn't have any kind of integrated blogrolling either.

The notable exception to this being WordPress, which does have an exceptionally easy-to-use link management system. I suspect with the recent flap over MT3.0's licensing we'll see a lot of people moving over to WordPress and using its blogrolling system.

That and if you're going to run Blogads, you either have to run a three-column design (which is often iffy design-wise), or accept that your blogroll will have to be pushed down the page.

That makes perfect sense to me -- the Web has shown us that small differences in convenience can translate into big differences in the degree to which something is used. (The classic example is the clickable link vs. the link that you have to copy and paste.) I'm pleased to report, though, that PowerBlogs has a very nice blogroll maintenance feature.

St. George Tucker on Judicial Review and the Right to Keep and Bear Arms:
St. George Tucker was professor of law at the College of William and Mary, one of the leading judges of the General Court in Virginia, and the American editor of Blackstone's Commentaries, the most influential and authoritative legal work of the period. In the 1803 edition of the Commentaries, he attached an appendix discussing the meaning of the U.S. Constitution. This work was drawn from the notes if his lectures given throughout the 1790's and contemporaneous with the earliest years of the Constitution.

In this passage from a section entitled, Section 13 — Restraints on Powers of Congress (cont.), which I just happened to notice, he discusses the importance of the power of judicial nullification, as well as the nature of the right to keep and bear arms--which is discussed at the end in the context of other individual rights such as that of property and assembly. You will also notice the antipathy towards the British parliamentary model. This excerpt is long for a blog, but I did not want to alter the complete context of the quote. I have broken what is one very long passage into separate paragraphs and put the most relevant passages in bold:

In the United States, the great and essential rights of the people are secured against legislative as well as executive ambition. . . . They are secured, not by laws, only, which the legislature who makes them may repeal, and annul at its pleasure; but by constitutions, paramount to all laws: defining and limiting the powers of the legislature itself, and opposing barriers against encroachments, which it can not pass, without warning the people of their danger.

Secondly, by that division, and distribution of power between the federal, and the state governments, by which each is in some degree made a check upon the excesses of the other. For although the states possess no constitutional negative upon the proceedings of the congress of the United States, yet it seems to he a just inference and conclusion, that as the powers of the federal government result from the compact to which the states are parties; and are limited by the plain sense of the instrument constituting that compact; they are no further valid, than as they are authorised by the grants enumerated therein: and, that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by that compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.

Thirdly, by the constitution of the legislative department itself, and the separation and division of powers, between the different branches, both of the congress, and of the state legislatures: in all which, an immediate dependence, either from the people, or the states, is happily, in a very great degree preserved.

Fourthly, by the qualified negative which the constitution of the United States, gives to the president, upon all the proceedings of congress, except a question of adjournment.

Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive.

In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people: the statute de donis conditionalibus has been the rock, on which the existence and influence of a most powerful aristocracy, has been founded, and erected: the acts directing the mode of petitioning parliament, &c. and those for prohibiting riots: and for suppressing assemblies of free-masons, &c. are so many ways for preventing public meetings of the people to deliberate upon their public, or national concerns. The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.

[When reading the last sentence, bear in mind that Tucker's is accurately describing the power of the Federal government before enactment of the Fourteenth Amendment.]

I've mentioned below (and in many past posts) that legalizing or constitutionalizing same-sex marriages might indeed eventually lead to the same for polygamous marriages -- the slippery slope argument is plausible, though of course far from certain.

I suspect, though, that this won't in fact happen. The gay rights movement has succeeded, both legally and in many situations politically, because of a confluence of reasons. Homosexuals are only about 2-3% of the population; but they also have many more nonhomosexual friends, family members, and colleagues. They have the natural political sympathy of much of the liberal movement, that tends to take a broadly egalitarian and sexually libertarian view.

Homosexuals are generally not very socially insular, at least by choice; while there are some mostly homosexual organizations and social circles, homosexuals tend to work, play, and socialize with heterosexuals. This means that, once there's enough tolerance for homosexuality that homosexuals are willing to identify themselves, many people -- even many conservatives -- find that quite a few of the people they like are homosexual. And this has been especially so in elite circles that have a disproportional impact on law, policy, culture, and even public opinion.

The chief sources of polygamy in America, as I understand it, are likely to be Muslim immigrants and some Mormon sects. (These wouldn't be the only sources, but I suspect they'd be the main ones.) These are relatively socially insular. Few people outside the group are likely to have close friends who are polygamists.

What's more, these groups don't have a natural political home in the Left, because they tend to be highly socially conservative in many ways (setting aside polygamy itself, of course), and because they tend to be devoutly religious. I'm not saying that many people on the Left will deliberately refuse to endorse polygamy because they don't like the politics and religions of polygamists. But I doubt that many of the Left would be eager to go to bat politically for people with whom they have so little in common. And people on the Right aren't likely to back these groups, either, simply because most people on the Right are morally averse to polygamy.

Finally, it doesn't seem likely that polygamy will attract many ordinary people who are better integrated socially, and who do have natural allies on the Left or the Right. I suspect that few American women, for instance, would be that inclined to enter into polygynous (one man, many women) marriages. I suspect that even fewer American men would be inclined to enter into polyandrous (one woman, many men) marriages. I suspect that many American men who might want multiple sexual partners wouldn't be that inclined to actually marry, and in some measure have to support, multiple wives. (Men of course might marry women who are at the same income level as they are, but I suspect that those are the very women who would least want to enter into polygynous relationships.)

One can imagine some scenarios in which culturally well-integrated Americans might seek polygamy -- for instance, a rich man marrying many poor women (perhaps especially women from foreign countries, including ones where polygyny is not uncommon), or the occasional many-men many-women marriage. But I doubt that many of these will happen. And so polygamy will still be a preference of a few culturally and politically isolated religious groups; and neither judges (who on such issues are, I think, quite influenced by their social perspectives and perspectives of the people around them) nor legislators are going to be that likely to push for legalizing or constitutionalizing polygamous marriage.

Now all this might change. I suspect that in 1965, many people doubted that the homosexual rights movement would ever get off the ground. Perhaps I'm missing some other political force that would be able to successfully push -- both in court and in legislatures -- for allowing polygamous marriages. (For instance, perhaps there'll be some massive influx of immigration of religious Muslims who are polygamous or at least culturally open to polygamy, though if the influx is huge enough, then that might lead to a legalization of polygamy whether or not same-sex marriages are legalized.)

But it still seems to me that, as a practical matter, even if same-sex marriage is legalized, we're unlikely to in fact slip down to allowing polygamy.

it becomes harder to condemn the slippery slope argument as patently unsound. Dahlia Lithwick does make some apt criticisms of some "today, gay marriage, tomorrow . . ." arguments; and, as blog readers know, I tentatively support same-sex marriage and suspect that it probably will not lead even to a recognition of polygamous marriages (though I don't have the confidence in this that Dahlia does). But some of her arguments strike me as not entirely persuasive. Consider this:

[B]eyond just the policy differences between [same-sex marriage and polygamous marriage], there is also a legal bulwark between Justice Kennedy's reasoning in Lawrence v. Texas (and the Massachusetts decision in Goodridge v. Department of Public Health, which borrowed heavily from the reasoning of Lawrence) and the invasion of the polygamists: The right to sexual privacy Kennedy finds in the line of cases starting with Griswold v. Connecticut, the Connecticut birth-control case from 1965, is an intimate right, between two consenting partners. The court calls these "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." The desire of a group of seven people to marry simply does not intuitively fit into that binary sphere of intimacy.

To begin with, I think there's something conclusory about characterizing "intimacy" as an inherently "binary sphere." We're familiar with lots of nonsexual but very deep intimacy that isn't binary — consider the intimacy of relationships within a biological family of three, four, or even seven. It's true that we've traditionally understood marital intimacy, a particular subset of intimacy, as intimacy between two people. But we've also traditionally understood it as intimacy between one man and one woman. If we reject the "binary [opposite-sex] sphere of intimacy" model of marriage, despite its "intuitive[]" appeal to many people (and even more people not long ago), then it's quite plausible that many voters will be led to also reject the "binary" part.

Griswold deeply relies on the rights of a married couple — read the opinion and see for yourself how intricately tied it is to marriage. Yet a mere seven years later, in Eisenstadt v. Baird, the Court relied on Griswold to hold that unmarried couples have a right to use contraceptives.

The three-Justice concurrence (Goldberg, Warren, and Brennan) in Griswold also said that "it should be said of the Court's holding today that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting opinion in Poe v. Ullman [an earlier case in which Harlan eloquently argued for a right of married couples to use contraceptives,] "Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy."

Presumably Justice Harlan continued to hold this view, which means that four of the seven Justices who voted to strike down the law believed that the case was no precedent for a broader right to sexual autonomy, or specifically a right to engage in homosexual conduct. And yet the Court in Lawrence v. Texas used Griswold as "the most pertinent beginning point" for its decision to strike down laws banning homosexual conduct.

So the Court has been willing to depart from the very core of Griswold's argument (the limitation to marriage) and from the express assurances by the concurrence that the decision in no way affects homosexuality. Why should we have any confidence that the Court — or lower courts or other influential bodies — will feel limited by Griswold's supposed stress on the inherent "binar[iness]" of "intimacy," something that is much less expressly dwelt on by the Griswold opinions? (To the extent the opinions suggest anything about the binariness of intimacy, that comes from their focus on the married couple — a focus that the Court has long abandoned, see Eisenstadt.)

The changes in sexual attitudes -- and in the law surrounding sex -- over the last 40 years are one long slippery slope. Some may think it's a slope to a good result, others to a bad result. But we have seen growing legalization and social normalization of contraception, premarital sex, abortion, and homosexuality, and a growing constitutionalization of such changes, so that communities where a majority still opposes those changes are nonetheless required to accept them. The legalization or constitutionalization of same-sex marriages would be yet another step.

It's conceivable, of course, that there is simply a temporal relationship here and not a causal one -- perhaps the first changes didn't help cause the subsequent ones, in which case we should worry less about the legalization or constitutionalization of same-sex marriage helping cause other things. It's also conceivable (perhaps even likely) that there are powerful political reasons why things will stop short of legalizing polygamous marriages.

But given this past history, the slippery slope arguments related to same-sex marriage aren't that easy to dismiss. And they're especially hard to dismiss by an appeal to the supposed inherent limits of Griswold, limits away from which we have already dramatically slipped.

I watched the series finale last night and struck me as a rushed season finale. Considering the show's popularity and the WB's relative lack of same, I really think the network suits should be ashamed of themselves to let the show die the way they did. My hope is that Joss Whedon left it as such a cliff-hangery show precisely because some other network might pick it up. I said this was my hope, not my expectation. Though such things have happened before. Remember "Taxi" switched networks.

Am I wrong or did the final scene seem perfectly set-up for the cavalry-like arrival of the slayer army?

I'm impressed but not hopeful. That is, I thought the episode was very good. It was certainly much better than the Buffy finale (which I didn't hate as thoroughly as most people did but which certainly wasn't great), and better than most of the last couple of seasons of Angel, but it was also just very good, regardless of comparsion-- a fitting ending to the series, one that showed some recognition of who its characters were and what world they lived in. The overall closing arc was rushed, of course, because the show got cancelled when most of the season had already been produced. (And Jonah's certainly right about the WB's foolishness or worse.) We just shouldn't find out about the age-old world-spanning evil circle, sans foreshadowing, in the penultimate episode.

But I didn't think the pacing of this episode was that bad. The only thing that felt rushed was the hits on the bad guys. But I thought that was thematically fine. Our heroes haven't ever been great at strategic planning, but give them an enemy whose name and location they know and they can pretty efficiently take them out. The episode centered on the anticipation and the consequences of the strike, not the hits themselves.

And no, I don't think the slayer cavalry is a-comin'. I don't think Willow's going to suddenly show up and open a portal that will suck the army in. I don't think Illyria's violent temper and Angel's temporary supercharge are going to win the day. They've won the battle they set out to. They're going to lose this one, and they know that. If somehow they defeat the first few thousand bad guys, there will be more. I think it'd be hard for any movie or renewed season on another network to finesse a victory out of that fight. And I don't think they should. That was a very fine moment and tone to end on.

It's not a proper geekpost without some quibbles, of course. Since when can one alter prophesized events by signing the prophecy away, even in blood? The piece of paper isn't the prophecy itself; it's just the report of the prophecy. (Buffy, Season 1 finale: "Oh, so if I prick my finger and write "Buffy" in the book then I won't die! Cool! No, Giles, I don't care about how much the bloodstains will ruin the centuries-old tome.") And I can't quite sort out when Angel could have told Lorne what his real mission was. But such is life.

I'm sorry to see Angel go and sorry to see Whedon's universe go. But it ended well.

Rockin' Book Tour Ends in LAThe Rockin' Book Tour for Restoring the Lost Constitution: The Presumption of Liberty finally concludes with two talks in June, both of which are jointly sponsored by the Los Angeles Lawyers Division of the Federalist Society and the Libertarian Law Council. A limited number of books should be available for sale and signing at the event. (The safest thing, however, would be to bring your own copy.)

These events are open to the public, though there is a fee to cover the cost of providing lunch. Advance reservations are requested. Here are the details:

The cost of the June 1 luncheon is $33 if paid in advance, or $36 at the door. The cost of the June 2 luncheon is $25 if paid in advance, or $28 at the door. Please send checks for either event (made payable to the Federalist Society) to Jeremy Rosen at Horvitz & Levy llp, 15760 Ventura Boulevard, 18th Floor, Encino, California 91436. Prepayment must be received no later than May 28, 2004.You may reserve a place for payment at the door by calling Linda Frerer at (818) 995-5858.

Attendance at the luncheon is not restricted to lawyers. If you are in the LA area, I hope to see you there. Be sure to identify yourself as a Volokh Conspiracy reader.

Wednesday, May 19, 2004

Kerry is asked "what is your position on Bush's fight to ban gay marriages?" His response, in relevant part:

I believe that the president of the United States should not use the Constitution of the United States for election purposes during an election year. It's a document that we haven't touched, certainly with respect to the Bill of Rights, for years, and I don't think it should be used for the purpose of driving a political wedge through America. . . .

What, though, does the Bill of Rights have to do with it? Kerry's view is that the Bill of Rights (including the Fourteenth Amendment, which technically isn't part of the Bill but might be fairly lumped in with it for some purposes) doesn't protect a right to same-sex marriage. He thinks that states should have a right to adopt it, and apparently he thinks that states ought to adopt civil unions for same-sex couples, but he doesn't think the Bill of Rights commands it.

But then how would amending the Constitution to ban same-sex marriage be "touch[ing] . . . the Bill of Rights"? It would indeed interfere with the rights of states, and it would bar them from providing extra rights to people beyond what the Bill of Rights commands. But it just isn't lessening or modifying Bill of Rights protections — unless Kerry really does think that the Bill of Rights mandates the recognition of same-sex marriages.

I realize that Kerry was speaking off the cuff here. But this is a pretty significant substantive point. Kerry apparently wanted to make a constitutional ban on same-sex marriages seem momentous and pregnant with threat to our Bill of Rights protections. (I take it that's the chief argument against "touch[ing] . . . the Bill of Rights" — if you lessen some Bill of Rights protections, then you're making it easier for others to lessen still other such protections.) The trouble is that his claim was inaccurate, and if it impressed people rhetorically, it did so by misleading them.

Again, I'll cut Kerry some slack; he was doubtless tired, harried by the pace of the campaign, and when people speak off-the-cuff they inevitably make some errors. But this was indeed a substantive error — an error that might or might not have been just a slip — and it seems worth noting.

UPDATE: A couple of readers asked: Might Kerry have meant that he thinks the Bill of Rights secures a right to same-sex civil unions, and the Federal Marriage Amendment that Bush backs would repeal such a right?

Well, if that were Kerry's view — "I think that the Constitution secures a right to same-sex civil unions, and courts should require all states to recognize such unions" — that would, I think, be very big news. But I'm pretty sure that it isn't his view, given what he says in his remarks:

And I think that's the way you respect — (applause) — that's the way you respect both traditional values, but you can allow civil unions, which protects the rights of people in America not to be discriminated against. And I think you can balance that. And I think it's appropriate to. But I do think that it ought to be left to the states. There's no showing whatsoever yet that the states don't have the ability to be able to manage this one-by-one individually, and we have always, throughout history, left the issue of marriage to the states. That's what I think we should do.

If he thinks recognition of civil unions should be left to the states, then I doubt that he thinks the Bill of Rights demands such recognition. And again the suggestion that the proposed Federal Marriage Amendment would somehow touch the Bill of Rights would be unsound, even under his own view of the Bill of Rights.

FURTHER UPDATE: A couple of readers suggested that maybe Kerry was referring to the Tenth Amendment — a ban on same-sex marriage would trench on the reserved powers of states, and thus "touch" the Bill of Rights. I rather doubt that Kerry was trying to make this point (partly because I doubt that he believes the Constitution protects states' rights much).

But if he was, then his statement was misleading for another reason: The 26th Amendment, ratified in 1971, reduced states' Tenth Amendment-secured powers by restricting states' ability to impose voting age qualifications; the 24th Amendment, ratified in 1964, likewise reduced such powers by restricting states' ability to impose poll taxes for federal races. More broadly, lots of the Amendments that Kerry likewise endorses — for instance, the 13th (slavery), 14th (equal protection, due process, and more), 15th (no race discrimination in voting), 19th (no sex discrimination in voting), and likely some others, too — would have "touched the Bill of Rights."

So the Bill of Rights was touched, in ways that Kerry would endorse, on many occasions, including two within the lifetime of most voters. Thus, if "for years" is understood as "for very many years" (the way I think it's likely to be understood, and the only way that works within Kerry's argument), then even the rather politically far-fetched Tenth Amendment interpretation of Kerry's statement proves to be misleading.

I believe that the president of the United States should not use the Constitution of the United States for election purposes during an election year. It's a document that we haven't touched, certainly with respect to the Bill of Rights, in years, and I don't think it should be used for the purpose of driving a political wedge through America. I think it's wrong. Now, that said, I personally have taken the position I believe that marriage is between a man and a woman. That's my position, and I think that's the way you respect both traditional values. But you can allow civil unions, which protects the rights of people in America not to be discriminated against. And I think you can balance that, and I think it's appropriate to. But I do think that it ought to be left to the states.

Here's Slate's version, "translated into plain English," according to the item:

I believe that the president should not use the Constitution for election purposes. It's a document that we haven't touched in years, and I don't think it should be used for the purpose of driving a political wedge through America. I think it's wrong.

Now I'm certainly not wild about the way Kerry put things (though, as I always say, one has to make allowances for oral presentation, which will rarely be as polished as the written). But Slate tried to fix the problems chiefly by completely deleting a key part of Kerry's point.

Kerry isn't just trying to say that he's against a constitutional ban on gay marriages. He's also trying to say (somewhat inartfully, I acknowledge) what he's for -- for marriage being opposite-sex only, but for leaving the matter to the states, and for providing for civil unions at the state level. These are important parts of his point, both as a matter of rhetoric (say what you support and not just what you oppose) and as a matter of substance (make clear to listeners that you oppose a constitutional amendment but still share the majority's preference for recognizing only male-female marriages).

Again, these aren't just "pointless embellishments," or "ornate phrase[s]" instead of which "a normal person would have substituted" what Slate suggests. And to the extent that they are caveats, they are politically necessary caveats. Removing them isn't "translat[ing] into plain English" -- it's changing the substance and tone of what Kerry is saying.

As I've said before, I don't find this quibbling about people's spoken words to be terribly helpful, given the weaknesses that nearly all of us have in our oral presentations. That's true as to Bush and as to Kerry. But if you're going to quibble about other people supposedly getting something wrong (even if just stylistically wrong), you should at least get your quibbles right.

So far, both installments of Slate's Kerryism have made more serious errors than they've accused Kerry of making (see here for my criticism of Kerryism #1). Let's hope that future Kerryisms are a bit more accurate in their criticism. Or, better yet, that both the Kerryisms and Bushisms columns are set aside altogether.

I have to run, so I can't go in detail on today's Kerryism in Slate (see here for my criticisms of yesterday's), but one thing just jumped out at me: Kerry argued that we shouldn't amend the Constitution because "It's a document that we haven't touched, certainly with respect to the Bill of Rights, in years, and I don't think it should be used for the purpose of driving a political wedge through America." Slate says he should have dropped the "certainly with respect to the Bill of Rights."

If I had an editor like that, I would scream. The Constitution was mostly recently "touched" about 10 years ago, with the addition of the Twenty-Seventh Amendment. That's a special case, since it was ratified over 200 years, though I think most ratifications came in the last 20 years of the process. But since 1960, there have been five amendments, including the Twenty-Seventh.

The "certainly with respect to the Bill of Rights" might be a caveat, but it's a necessary caveat — otherwise people could reasonably say that while we literally haven't touched the document "in years," we have changed it quite a bit within many voters' lives. You can't just remove it and claim that the result "is Kerry's quote translated into plain English." The result is Kerry's quote made wrong, or at least misleading and subject to factual criticism.

Actually, it's Kerry's quote made more wrong. The Federal Marriage Amendment would not change the Bill of Rights (except to the extent that one thinks the right to marry is already guaranteed by the Fifth Amendment Due Process Clause, which Kerry presumably doesn't believe). But be that as it may, the Slate "translat[ion]" does nothing to fix this error, and merely adds another error.

As If We Needed Further Evidence,
Senator Fritz Hollings proves himself to be an utter fool and ignoramus. According to Hollings, the U.S. must have known that there were no weapons of mass destruction in Iraq. Why? Because the Mossad, which Hollings seems to think is omniscient, had to have known. Moreover, if Iraq had such weapons, Israel would have taken them out. Instead, the reason the U.S. decided to invade Iraq was to secure Israel, appease American Jews, and take the Jewish vote from the Democrats. All the talk of spreading democracy in the Middle East is meant to secure Israel. How do we know? Because Wolfowitz, Perle, and Krauthammer were leading advocates of the idea that the Middle East needs democratization.

A few comments:

(1) If I'm not mistaken, it's Israeli military intelligence, not the Mossad, that would be responsible for determining whether Iraq had weapons of mass destruction. And it's created a minor scandal in Israel that IMI, like other intelligence services around the world, was convinced that Iraq did have such weapons, for which no evidence has yet been found.

(2) Israel in general, and the Mossad in particular, does not have superpowers. Iraq is hundreds of miles from Israel. Israel's attack on the Osirak reactor in 1981 required incredible skill and planning, and a lot of luck. Exactly how does Hollings think Israel (the Mossad) could have destroyed hidden stockpiles of WMDs? Israel hasn't even been able to stop Iran from arming Hizbullah and Hamas, much less from building its nuclear reactor.

(3) If Bush really wanted the Jewish vote, the first thing he would do is become pro-choice. I can't prove it, but I'm convinced that Republicans lose far more Jewish votes over abortion and other religiously-tinged issues than over Israel. And Jews are but 2% of the population. The idea that a president will go to war and put his entire presidency on the line to sway some fraction of that population (many of whom are virulently left-wing and antiwar) is ludicrous.

(4) Funny how Hollings only mentions the name of JEWISH neocons who wanted to spread democracy to the Middle East.

(5) Neocons have wanted to U.S. diplomatic military power to spread democracy all over the world, for decades. They supported the war in Vietnam, Reagan's Cold War policies (such as the invasion of Grenada and the Contras in Nicaragua), intervention in Yugoslovia, and just about any wise or harebrained scheme of military intervention any president of either party has come up with over the last thirty years. The neoconservatism vision, like other intellectual, idealistic visions from socialism to libertarianism, has a disproportionate appeal to Jews. But the fact that these Jews apply their vision to the Middle East as much as they did to, say, Poland or Nicarague, hardly means that they are simply shilling for Israel.

(6) Indeed, and I've mentioned this before, Israel's most important strategic interest in the Middle East prior to the Iraq invasion was to contain Iran. Iran was, and remains, infinitely more threatening to Israel than was Iraq. (In my view, Iran is a greater danger to the U.S., as well.) It's not at all clear that invading Iraq has made Iran less dangerous; it's entirely plausible that given diplomatic and military difficulties in Iraq, the U.S. will now be gunshy about intervening in Iran, if needed, for example, to stop Iran from acquiring nuclear weapons.

(7) I'm glad that the Jesse Helms, Fritz Hollings, and other holdovers from the bigoted, reactionary South of yesteryear are finally leaving the Senate. They have been a stain on the institution.

Last Saturday, I criticized the L.A. Times for its account of supposed military unfitness. My suspicion is that, though the Times was using military "unfit to fight" designations as if they simply meant that the unit was in fact unfit to fight, the designation is actually a military term of art that refers to the unit's ability to pass various tests. Some of the tests are closely related to actual fitness to fight and others of which aren't. But especially when a unit has been in combat, the designation is at most loosely correlated to the unit's actual fighting capacity; and the prevalence of that designation among various military units is likewise at most loosely correlated to the military's aggregate fighting capacity. Because the Times failed to make that clear, I suspect that most readers got an unjustifiably grim impression of the military's actual combat-readiness.

After I posted this, a few readers said that Bush, while a candidate in 2000, made a similar error; one reader actually pointed me to some contemporaneous newspaper articles describing Bush's statements on this (which is much more valuable to me than just a general claim that "Oh, Bush did it, too"). One article, for instance, reported that Bush faulted Gore "[c]iting reports that two of 10 Army divisions were not at the highest state of readiness." See also Bush's acceptance speech, where he says something similar, and also this article. (Thanks especially to readers Brent Ware and Jeremy Bloom for the pointers.) My correspondents suggested that these reports also flowed from the divisions' having been deployed in the Balkans (though naturally in far less taxing roles than the military's current Iraq roles).

I wanted to flag this, because if indeed Bush was making the same mistake as the Times seems to be, he should indeed be faulted for it. (I'm too swamped to look further into how similar the situations actually were, especially since that's not really important to my point.)

But naturally this does little to excuse the Times on this score. Among other things, I'd hope that newspapers would have a higher standard for unbiased reporting than would presidential candidates.

Uncle Milton's Giant Ant Farm is a fun, interactive way to teach children ages 5 and up about unceasing, backbreaking toil and the cold, inescapable reality of death. My little ones had a front-row seat as worker ants labored, day in and day out, until they inevitably died of exhaustion, their futile efforts all for naught. The ant farm, complete with stackable tiny ant barns, see-through 'Antway' travel tubes, and connecting 'Antports,' is a child's window into the years of thankless, grueling labor that await them as worker drones in our post-industrial society. It's the fun way to teach your kids to accept their miserable fate stoically.

The ants, which come separately from the farm, are bred in New Mexico and mailed directly to your home. Within days of arriving, a majority of the ants die at the hands of the small children responsible for regulating the temperature, humidity, and food supply in their delicate pseudo-ecosystem. Even under optimum conditions the ants survive no more than 20 weeks in the farm. As a result, children are assured the chance to contemplate the inescapability of their own mortality and the whole family will be reminded that the spectre of death hangs over every creature on this Earth.

The lesson that the ants' labor is all in vain becomes clearer as time passes. During the first two to three weeks, the exclusively female worker ants are extremely productive, building an elaborate system of tunnels and hills amongst the miniature green trees and red plastic houses dotting the interior of the plastic dome. However, because neither male ants nor a fertile queen is provided with Uncle Milton's Giant Ant Farm, making reproduction impossible, the farm is doomed to extinction from day one.

You'll learn such fascinating things about the natural world, like the fact that the social structure of an ant colony is extremely complex, with individual members occupying such castes as soldier, messenger, and larvae attendant. At some point, Uncle Milton's ants become cognizant that their hierarchical structure has been stripped away, rendering their already near-meaningless existence totally futile. There seems to be a breaking point at about the 22-day mark when the dejected ants begin to die off en masse.

At this point the ant farm enters what is known as the "death-pile phase." A spot is chosen by the worker ants to deposit their dead, and the burial mound steadily grows as the few remaining ants devote more of their time to gathering and burying others. Yes, with Uncle Milton's Giant Ant Farm, arbeit macht fun!

UPDATE: Several readers report that the gag is originally from the June 2000 issue of The Onion; much appreciate knowing that, and being able to give credit where it's due.

Now, for another geography question — this one shouldn't be too hard or esoteric — with an extra credit history question.

First, the basic question: Which islands are split among two or more countries? Exclude islands with an area of 2500 square miles or less. Don't count military bases and embassies. And exclude islands on which a rebel force exercises de facto control over part of the territory, but without broad international recognition (Cyprus is the classic example). My tentative answer:

Second, the extra credit: If you go back to 1925, what other islands would meet this criterion? Exclude islands that were under mixed control because of relatively brief periods of warfare (say, under five years).

The complaint: "the pomposity and evasiveness of John Kerry." The structure of the critique:

Here's how to read a Kerryism. The text below is Kerry's quote translated into plain English. Kerry's actual quote, however, is full of caveats and pointless embellishments. To read these, click the numbers above the text, which will take you to the caveats and embellishments, presented as footnotes. (Words in brackets before a number are what a normal person would have substituted for the ornate phrase Kerry delivered. To see the ornate phrase, click the number and read the footnote.) To return to the main text, click the number at the beginning of any footnote. To see the whole quote as Kerry delivered it, with all the caveats and embellishments, click here. To get back to this Kerryism, click "Return to English version."

I'm no political expert, but it seems to me that Kerry had very good reason to include much that he included — and most of it was neither pompous nor evasive. It wasn't pointless embellishment because it had a perfectly good political point.

Consider Slate's deletions 2, 4, and 5 (I'll incorporate deletions 1 and 3, which are indeed good edits). These changed Kerry's words from "Let me just say that the horrifying abuse of Iraqi prisoners is absolutely unacceptable and inexcusable" to "Let me just say that the abuse of Iraqi prisoners is unacceptable." I don't see what's pompous or pointless about stressing that Kerry thinks that the abuse is not just unacceptable, but absolutely unacceptable, horrifying, and inexcusable. The words that Slate would delete may not add much purely logical substance. But they are valuable intensifiers that help convey (especially in an oral presentation) the strength of his feelings.

Likewise, consider deletions 6 and 7, which change the next sentence from Kerry's own "And the response of the administration, certainly the Pentagon, has been slow and inappropriate" to Slate's "And the response of the administration has been slow." I take it that Kerry was trying to get in a special dig at the Pentagon — a more concrete target than the more abstract administration — and also stress that the administration's actions were inappropriate (i.e., substantively inadequate, even regardless of the timing) as well as slow.

I likewise think Kerry had good reason for saying what Slate faults in deletion 8, but let's go on to the next sentence. Kerry said "What happened there has done a disservice to all of our troops who serve with great valor and greater courage and, I think, with distinction." Slate would change this to "What happened there has done a disservice to all of our troops." But it seems to me quite politically sensible — hardly pointless or pompous — for Kerry, who's faulting the administration for the misconduct of a few troops, to at the same time praise our troops generally. I agree that "and, I think, with distinction" only weakens the statement, and should go. But "What happened there has done a disservice to all of our troops who serve with great valor and greater courage" is probably politically much better than Slate's overedited version.

I agree with some of Slate's other edits and disagree with others, but I won't take your time further with that. I hope I've supported, though, my basic point: The author of Kerryisms seems to have come up with some ideal, Spartan style and is faulting Kerry for not conforming to the style. But this style omits much of the emotional content that politicians understandably want to include, and some of the repetition that speakers often find to be helpful in oral presentations (even if it would be distracting or unnecessary in written work). Kerry has very good reasons to use his own style — and many aspects of that style that Slate condemns are not pompous, evasive, or pointless.

More broadly, while I applaud Slate's willingness to "cast an equally cold eye" on both candidates, I shudder to think of what would happen if Kerryisms became the same sort of column as Bushisms — a continuing quest for something that the author can nail Kerry on, with the "gotchas" often being simply legitimate differences of style or errors of the sort that most speakers routinely make. A better sort of equal treatment, I think, would be to retire both columns.

Finally, I express no opinion on whether Kerry is indeed often pompous or evasive, or engages in pointless embellishment. I also can't speak to how Kerry's statement here came across orally — maybe his delivery was lousy, even if the text was fine. I say only that this is a pretty poor example of what Slate is seemingly trying to prove. And it bodes ill for this column.

Did the recent judicial appointments deal -- in which the Democrats promised to let through some relatively uncontroversial judicial nominees in exchange for the Bush Administration's promise not to make recess appointments until the next inauguration (whether of Bush or of someone else) -- give the Bush Administration more than what they had before they started making recent appointments? If so, it would be something of a political victory for Bush. Or did it just free up nominees who were bottled up because of the recess appointments, and who would have been confirmed this year anyway had Bush not started the recess appointments? If so, it would be something of a political defeat for Bush.

I had thought the answer was the former, because I thought that even some of the noncontroversial appointees were being held up, partly because the Democrats figured they could do it, and partly because in recent years, people have generally tended to get held up in the last year of a Term (so long as the other party has had the power to hold them up). But various correspondents have suggested that the answer is the latter. Byron York at NRO likewise agrees.

I'm not expert enough on the politics of the matter to have a confident opinion (and I don't have the time to try to acquire one now), and given these counterarguments, I think I ought to withdraw even my tentative opinion. Perhaps the matter is yet more complex than the York column describes -- for now, let me just say that I no longer have any confidence in my earlier stated view.

David Bernstein (after reviewing the evidence that to a large extent, George W. Bush is governing as a liberal): "Give him a phony Haavaad accent instead of phony Texas twang, a wonky college life, a less religious persona, and an attorney general other than John Ashcroft, and George Bush, in theory, would be a dream president for many liberals."

Brad DeLong: Bernstein is a "either a out-and-out troll saying things he doesn't believe or is remarkably uninformed."

Flash forward.

Ezra Klein: "Republicans are getting elected by promising to protect the environment, strengthen entitlement programs, conduct humanitarian interventions, back Democratic security initiatives, and support public schools. They are getting elected by pretending to be Democrats, albeit Democrats who wear cowboy boots."

UPDATE: I don't want to rehash the debate my original post generated. Obviously, there are some reasons (judicial appointments, for one) for liberals to dislike Bush. And many liberals have pointed out to me that they think Bush has spent money imprudently and unwisely (e.g., on education and Medicare drug benefit), albeit on liberal goals. But my original post was meant, in a somewhat tongue in cheek vain, to tweak those Bush-haters who assert that Bush is running some sort of rabidly conservative economic and foreign policy, when in fact many of his policies are similar to those that would be pursued by any number of liberal politicians. DeLong and others are correct to exult in the Republican Party's abandonment of limited government ideology, but probably incorrect to think this is mere cynicism on the part of Bush and other top Republicans. Where is the evidence that these folks ever believed in limited government to begin with?

Tuesday, May 18, 2004

[UPDATE: I think I was mistaken in the post below; see here for my explanation.]

It looks like the Administration's decision to appoint some controversial judges via recess appointments has led to a political victory on other appointments:

Democrats will allow votes on 25 noncontroversial appointments to the district and appeals courts that they've been holding up for months. In exchange, Bush agreed not to invoke his constitutional power to make recess appointments while Congress is away, as he has done twice in recent months with judicial nominees.

The deal lasts until a second Bush presidency begins or a new president takes office, officials said. The agreement was struck days before the Senate began its Memorial Day recess, in a meeting among top Senate Democrats and Republicans as well as Andrew Card, the White House chief of staff.

So recess appointments seem to have been an effective bargaining chip. (I set aside the debates about whether such appointments are constitutionally sound, a matter on which I have no informed opinion; I speak here just of the politics.)

Naturally, if Bush loses enough votes in the election as a result, then it won't be much of a net victory after all, but I rather doubt that this would happen. It's also possible that Bush's actions lost him goodwill with some Senators, and thus made various other things harder for him; I don't know enough to be able to speak to that. (The article gives a bit more of the political picture — do read the whole thing if you're interested in the subject.)

But at first glance, it looks like the recess appointments gambit has paid off, and has helped Bush get confirmed some nominees who might otherwise have remained bottled up.

UPDATE: A reader suggests that perhaps the 25 noncontroversial appointees would have gotten through in any event were it not for the recess appointments. I'm skeptical about that, partly because I think — given the past delays even on the relatively noncontroversial appointees, and given the temptation to block all nominations during an election year — that the Democrats would likely have blocked many of the 25 in any event. But I might well be mistaken. The reader writes:

You'll probably want to confirm with someone who's far more up on the ins and outs than I, but I think that it was hardly the recess appointments that were an "effective bargaining chip." The recess appointments were a response to the Democratic filibusters of the half-dozen or so controversial nominees (Brown, Kuhl, Haynes, Pickering and Pryor themselves, etc.). Those folks still will not get a vote. In response to the aggressive use of the recess-appointment power, the Dems held up dozens of noncontroversial appointees who otherwise would have been easily confirmed. They did so because if Congress begins to permit the President to call a ten-day adjournment a "recess," the advice and consent power is seriously threatened. In response to this Democratic "hardball," the Administration cried "uncle" on the recess appointees, and the Dems therefore agreed, as the story you quote indicates, to "allow votes on 25 noncontroversial appointments." The President is no better off, in other words, than he was before he appointed Pickering and Pryor (except, of course, that he has both of them on the bench temporarily).

Certainly possible; hard for me to tell for sure (hence my tentativeness on this throughout).

Several readers e-mailed me to express some disapproval of Brown's relying on social science evidence for its rejection of "separate but equal." Here's one statement of the argument from someone whom I much respect, Dr. Thomas Sowell:

While Brown in effect overruled the 1896 Plessy v. Ferguson Supreme Court decision that racially "separate but equal" facilities were constitutionally acceptable, it avoided saying that Plessy was simply a wrong interpretation of the Constitution — that is, wrong in 1896 as well as wrong in 1954. Instead it relied on "modern" psychological knowledge, not available to the Court in 1896, to show how separate could no longer be considered equal.

This approach finessed the whole question of why the Warren court's reading of the Constitution was superior to that of the 1896 Supreme Court, rather than simply reflecting a different social preference. Such a question would undoubtedly have stiffened the resistance to the Brown decision, which was stiff enough as it was in those states where racial segregation existed.

Chief Justice Earl Warren said that racially separate schools "are inherently unequal," even when they were provided with the same tangible resources. To separate black children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

Inspiring as such rhetoric may seem, it establishes no fact, nor even a probability. I happen to have been one of those black children who went to a segregated school in the South. The fact that there were no white kids in our school was something that no one I knew ever expressed any concern over, or even noticed. There were no white kids in our neighborhood or anywhere we went. Why would we be struck by the fact that there were no white kids in our schools — much less be so preoccupied with that fact as to interfere with our learning the three R's?

As I understand it, some of the studies on which Brown has relied on have indeed been questioned. But it seems to me that Brown was both right to consider social science evidence, and to reach the result that it did as to deliberate, legally enforced racial segregation.

Let's start with the background. The Fourteenth Amendment mandates "the equal protection of the laws," and the Supreme Court early on recognized that the purpose of this was largely to prohibit race discrimination. But this left an important question: Does it violate "equal protection of the laws" when blacks and whites are required to use separate facilities?

As a purely abstract matter, the answer isn't clear. On the one hand, blacks and whites are being treated unequally, in that one must go to one place and the other to another. On the other, if the facilities are indeed equal — in practice, they often weren't, but assume (as the Court in Brown did, given the factual assertions made by the courts below) that they were equal or at least nearly equal — one can argue that this suffices to give blacks and whites equal practical benefits. For instance, we rarely think of separate bathrooms for men and women as even posing much of an equal protection problem; partly this might be because we're just used to them, and partly because we rightly don't think of sex classifications quite the same way that we think of race classifications, but it's also largely because as a practical matter men and women are being given pretty much the same thing.

But it has been quite clear for a very long time that, unlike with separate bathrooms for the sexes, the system of racial segregation was largely intended as a means of expressing majority contempt for blacks, and majority views of the inferiority of blacks. That's how it was intended, and that's how it was perceived. The question is whether this reality was legally relevant.

The Plessy majority's endorsement of "separate but equal" rested on the view that the social message of segregation was irrelevant:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

This strikes me as quite unpersuasive, and it didn't persuade Justice Harlan, either:

Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. . . . The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

The law, Harlan reasoned, "proceed[ed] on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens[.] That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana." It seems to me that he was correct. And he was also right to be attentive to the clear message that a law sends, rather than just its tangible effects. As the Titles of Nobility Clause recognizes, the social message of facially discriminatory laws that separate some out as superiors and other as inferiors is a wrong that it is proper for the Constitution to forbid. (See also Story's Commentaries on the titles of nobiltiy.)

So the Brown Court was facing the same question that the Plessy Court: Is segregation inherently a violation of the requirement of "equal protection"? The Justices likely shared Justice Harlan's sense of the matter, and they were right. The Plessy majority's argument that "[if the law] stamps the colored race with a badge of inferiority . . ., it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it," is just mistaken: The segregation of the races in America was intended to stamp blacks with a badge of inferiority, and was seen as doing so, precisely because of the racial classification embodied in the act, rather than "solely because the colored race chooses to put that construction upon it." "[T]he Warren court's reading of the Constitution" was indeed "superior to that of the 1896 Supreme Court" in this respect, because it was a more accurate understanding of the purposes and effects of the law.

But they sought to buttress their conclusion on the ultimate question — does segregation end up violating the requirement of equality? — by trying to also point to more concrete evidence that segregation didn't just offend black schoolchildren, but impaired their education:

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system."

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [Footnote: K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., (1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).] Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . . .

This seems to me like an eminently sound form of argument: Common sense understanding that "To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone," buttressed by psychological evidence that is consistent with this understanding. Again, one can agree or disagree with some items in the sources the Court cited. But it seems to me that the Court's analysis was basically correct here, and its willingness to consider social science evidence that bears on the factual question of whether segregation does indeed send a harmful message of inferiority was quite legitimate.

I'm glad that Dr. Sowell paid no mind to the laws that were intended to brand blacks as inferior, and were understood by many as in fact conveying that message. But I can't fault the Brown Court for taking the view that many black students would indeed pay attention to the legal constraints that were imposed on them. As Story wrote about the Titles of Nobility Clause,

As a perfect equality is the basis of all our institutions, state and national, the prohibition against the creation of any titles of nobility seems proper, if not indispensable, to keep perpetually alive a just sense of this important truth. Distinctions between citizens, in regard to rank, would soon lay the foundation of odious claims and privileges, and silently subvert the spirit of independence and personal dignity, which are so often proclaimed to be the best security of a republican government.

It seems to me quite reasonable to interpret the guarantee of "equal protection of the laws" — with the help both of common sense and psychological research — as recognizing the similarly harmful effects of "[d]istinctions between citizens, in regard to [race]."

Incidentally, I think there's much to criticize about post-Brown developments having to do with, for instance, forced busing; as I mentioned before, I certainly don't endorse race preferences; and, as I also mentioned before, one can also argue whether Brown (and especially its companion case, Bolling v. Sharpe, which struck down segregation by the federal government) are sound as a matter of original meaning. But I think that the particular criticisms of Brown that I mention above are not sound.

Jewish Wedding Band/DJ Recommendations
If anyone has a recommendation for good NYC-area wedding band capable of playing a selection of klezmer, Israeli, and American songs, please email me at deliotb at aol dot com. DJ recommendations also accepted.

A bit more on Brown as a Fourteenth Amendment case:
In my post yesterday, I responded to Dr. Roberts' claim that "The Brown decision was NOT based on the 14th amendment" by quoting the decision, which was indeed extensively based on the Fourteenth Amendment.
Fortunately, Larry Solum, who has more to say on the subject, also pointed out that the appellants' briefs, the U.S. government's brief, and the oral argument transcript are available online. This lets one check the accuracy of these claims of Dr. Roberts:

Dear Mr. Volokh: You are obviously unfamiliar with the case. You could read the case. You could read my account with Stratton in The New Color Line, or you could read a number of other accounts. Harvey Silverglate, a noted civil libertarian, for example, believes that Brown could have been argued as a 14th amendment case, although he understands that it was not.

In my own opinion, your opinions on these issues outrun your knowledge.

I recommend that you read the New Color Line. Brown was not argued as a 14th amendment case, because the Justices and Ellman in the DOJ, all of whom wanted to get rid of segregation, were convinced that it could not be done on the basis of the 14th amendment. You can read their own words. This is generally known, not some claim unique to me. What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. . . .

If any of you are interested, you can find the appellants' brief here. Look at it and see if it is accurate to assert that "Brown was not argued as a 14th amendment case." You can find the U.S. government's brief here. Look at it and see how the Justice Department relied on the Fourteenth Amendment. (Note that since that particular amicus brief also dealt with Bolling v. Sharpe, a federal case that turned on the Fifth Amendment, the government talks about the Fourteenth Amendment, the Fifth Amendment, and the "separate but equal" doctrine generally -- a doctrine that was clearly understood as being a Fourteenth Amendment doctrine.)
Check out also the oral argument transcript. By my count, the phrase "Fourteenth Amendment" appears 103 times in the transcript. Look at Spottswood Robinson's opening argument, just up until the first question -- it's all about the Fourteenth Amendment.
Is Dr. Roberts accurate in saying "Brown was not argued as a 14th amendment case"? Is he accurate in saying that he is speaking "truth to myth"?

What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. I am sorry to be rude, but I do think your insinuations that I am some kind of nazi for speaking truth to myth are worse than rude.

The American Civil Liberties Union of Washington today announced an agreement settling a discrimination complaint filed by a gay man against a local business that refused to print invitations to his wedding with his same-sex partner. Under the agreement, the business owner has apologized for her actions and agreed to abide by Seattle's anti-discrimination law in the future.

"Our nation's commitment to ending discrimination requires businesses to serve all customers equally," said ACLU of Washington staff attorney Aaron Caplan, who represented the gay man in the case. "Business owners are entitled to their private opinions about same-sex marriage, but discriminatory business practices are not permitted."

In August 2003, Seattle resident Tom Butts contacted Starfish Creative Invitations to hire them to print invitations for his upcoming wedding ceremony with Scott Carter in Vancouver, British Columbia. Butts liked samples of the company's work he had seen and liked the fact that it was a local business. But Starfish, a Seattle company, refused to provide their services because, in the proprietor's words, she believes "homosexuality is wrong" and same-sex weddings are "against her belief system."

The business owner's refusal violated Seattle's Open Housing Public Accommodations Ordinance, which protects an individual's right to purchase products and services without regard to sexual orientation. With legal representation by the ACLU, Butts filed a complaint with Seattle's Office for Civil Rights, the agency that enforces the non-discrimination law.

Under the settlement announced today, the business owner acknowledged that all persons should be treated with respect and dignity, regardless of sexual orientation, and she apologized that her actions offended and hurt Butts. She agreed not to violate Seattle's anti-discrimination law in the future. Butts and Carter were married in October 2003.

One common argument — perhaps the most common argument — in various gay rights debates is "How do equal rights for gays hurt you?" We hear it repeatedly in the gay marriage debate; we hear even more of it in the debate about decriminalization of same-sex sexual conduct.

The argument has a great deal of merit as a general approach to looking at things. It's not the only question, since especially when it comes to government-provided benefits, one important question should be how the extension of benefits helps society, and it's not an unanswerable question. But it is an important question. Part of the pro-gay-marriage-rights side's recent relative success flows from the difficulties that the other side has had in articulating a concrete and persuasive explanation of how gay marriage rights would hurt the rest of us.

But as the ACLU press release shows, the gay rights movement has affected others, by legally restraining their freedom of choice. The woman whom the ACLU went after has been essentially legally coerced into helping put together an event that she finds morally repugnant. Whether or not we agree with her, I think we must acknowledge that this is a significant loss of freedom for her — just as it would be a loss of freedom to force an ethical vegetarian building contractor to help build a meatpacking plant, to force a militant Democrat printer to print Republican flyers, or to force a pacifist mechanic to help repair tanks that are on their way to the battlefield.

Of course, this freedom has been restricted in some measure by other antidiscrimination laws; and I do not claim that this freedom is generally constitutionally protected (though some aspects of it might be protected under some state constitutional religious freedom guarantees). But this doesn't make the remaining freedom any less important to people, as the examples in the preceding paragraph show. Our business lives and our property rights are regulated in all sorts of ways. But we still have reason to complain about new regulations, and to reject claims that some law is harmless to us when the law actually constrains our freedom of choice.

Now this restriction on freedom of choice is not a logically necessary consequence of, say, the decriminalization of homosexual sex, or even of the recognition of same-sex marriages (recall that this happened in Washington State, where same-sex marriages aren't legally recognized). One can imagine a libertarian regime in which gays enjoy freedom from government interference with their liberty, and enjoy equal access to government benefits, but those who disapprove of homosexuality enjoy equal freedom not to help with practices and rituals that they find abhorrent. But that doesn't seem to be how our legal system works these days. Greater legal acceptance of homosexuals' freedom from government intrusion and government discrimination has indeed been accompanied with greater constraints on private choices not to deal with homosexuals. There are many reasons for this (chiefly attitude-altering slippery slopes and multi-peaked preferences slippery slopes, under which some voters take the view that once certain sorts of behavior are recognized as legitimate they generally shouldn't form the basis of private discrimination as well as public discrimination, and also perhaps in some measure political momentum slippery slopes and political power slippery slopes); but whatever the reason, it does appear to be the case.

This having been said, I still on balance support government recognition of same-sex marriage, and I strongly support having same-sex sexual conduct be legal. I realize that such action will probably increase the likelihood of bans on private sexual orientation discrimination, but though I oppose such bans, I think that on balance the benefits of recognizing same-sex marriage and decriminalizing same-sex sexual conduct exceed the costs.

But I quite understand why people who morally disapprove of homosexuality fear that the gay rights movement will mean not just more liberty for homosexuals, but less liberty for those who disapprove of homosexuality.

I admire those with entrepreunial spirit. I recently received the following letter from Julia Bannon, Online Marketing Manager at Harper Collins, with enclosures: "Dear David, I read your posts last week where you were collectively wondering, why dont publishers send bloggers review copies? You're 100% right! Publishers SHOULD be sending bloggers review copies. And I want to be one of the first to step up to the plate."

Ms. Bannon enclosed several interesting books, including Neal Stephenson's Cryptonomicon, which I've already read and enjoyed, though not with the fervor of Glenn Reynolds or Eugene. Among the books that I've already taken a more-than-casual glance at are Douglas Brinkley's Tour of Duty: John Kerry and the Vietnam War, and Michael Carroll's Lab 257: The Disturbing Story of the Government's Secret Plum Island Germ Laboratory. She also mentioned that author Neil Gaiman has a successful blog at NeilGaiman.com, and requested any guidance as to what books to send me in the future, and any more generally about reaching the blogosphere's audience.

As I stated before, I'm not exactly book-starved, and I'm not going to beg publishers to send me books. But those publishers with employees entrepreneurial enough to understand that the blogosphere is a new marketing opportunity will benefit from the first mover advantage.

Here are some good links to how economic models are calling the forthcoming Presidential election. Not surprisingly, the recovering economy is seen as favoring Bush.

Do we have any reason to think these models will be less accurate this time around? I can think of at least one scenario. Perhaps a healthy economy persuades many swing voters. Arguably this election cycle is more partisan than usual. In this view, it is about delivering high turnout for the base, rather than reaching the median voter. The economy might matter less for turnout of the core base. Instead the emotional "hot-button" issues, such as gay marriage and Iraq, may play bigger roles. And of course the economic models do not pick up such factors.

Until the recent prisoner scandals, I was calling this election as a shoo-in for Bush. Now I am less certain. I read the American public as willing to take real military losses for the war, but they don't enjoy feeling like the bad guys.

I thought this was an interesting question, posted by my friend Andrew Norton over on catallaxy, and thought I'd bring it to the attention of the economists hereabouts (Tyler? Alex? Brad?)

Perhaps the economists or marketing experts among Catallaxy readers can suggest reasons why both Qantas and VirginBlue have announced $6 fuel surcharges, due to rising oil prices.

The question isn't why they are lifting their prices - that's clear enough - but why they are levying a separate fuel surcharge. After all, this is not an industry with fixed prices. If I wanted to fly from Melbourne to Sydney in two weeks time, for example, Qantas can offer me 4 different fares ranging from $166 to $335, i.e. I can halve my costs if I am prepared to fly at a time when there is little demand for seats. Over at Virgin Blue, I have a choice of 6 different fares ranging from $79 to $229, so I can save nearly two-thirds if I fly at a low-demand time and take a ticket with restrictions on changing flights. Both airlines could have simply increased their prices by $6, and most customers would be none the wiser. We'd just think it was part of the airlines' normal efforts to make sure as many seats on each flight as possible are sold.

By announcing the $6 surcharge they seem to be unnecessarily informing highly price sensitive customers that air travel is now more expensive, and by putting it in the form of a temporary-sounding levy encouraging them to wait until prices drop again.

Monday, May 17, 2004

In my most recent response to Paul Craig Roberts, I took him to task for faulting Brown as "government by judges" but stating that he agreed with Justice Harlan's Plessy v. Ferguson dissent, which would have accomplished much the same thing. Dr. Roberts replied as follows:

Dear Mr. Volokh: The answer is simple: Justice Harlan's position was based on the 14th Amendment. The Brown decision was NOT based on the 14th amendment. Amazing that I have to point this out to a law professor!!!

I then e-mailed Dr. Roberts the following:

Hmm; the Brown Court described the case as involving the allegation that segregation "deprive[d] the plaintiffs of the equal protection of the laws under the Fourteenth Amendment," mentioned the Fourteenth Amendment several times during its opinion, and ultimately held "that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. What exactly do you mean then by "The Brown decision was NOT based on the 14th amendment"?

Dr. Roberts then sent the following:

Dear Mr. Volokh: You are obviously unfamiliar with the case. You could read the case. You could read my account with Stratton in The New Color Line, or you could read a number of other accounts. Harvey Silverglate, a noted civil libertarian, for example, believes that Brown could have been argued as a 14th amendment case, although he understands that it was not.

In my own opinion, your opinions on these issues outrun your knowledge.

I recommend that you read the New Color Line. Brown was not argued as a 14th amendment case, because the Justices and Ellman in the DOJ, all of whom wanted to get rid of segregation, were convinced that it could not be done on the basis of the 14th amendment. You can read their own words. This is generally known, not some claim unique to me. What I have noticed among the younger generation of professors is PC opinions that do not rest on knowledge. That is your problem with the Brown case. I am sorry to be rude, but I do think your insinuations that I am some kind of nazi for speaking truth to myth are worse than rude. My criticisms of Brown have nothing whatsoever to do with segregation. They have to do with precisely what my column states: the substitution of coercion for persuasion and the denial that good will is an effective basis for reform. The result today is status-based legal rights, which you conflate with social conventions.

Well, I've already spoken to how "substitution of coercion for persuasion" applies equally to the Plessy dissent — which would have coercively dismantled segregation just as Brown did — and how "status-based legal rights" have existed in the U.S. since the founding of the nation, and are hardly the "result" of Brown. But since Dr. Roberts' most recent points seem focused on whether Brown (which, as it happens, I have indeed read) is "based on the Fourteenth Amendment," I quote Brown:

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. . . .

The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. . . .

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. . . .

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. . . .

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. . . .

We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term. [footnote:] "4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment "(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or "(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions? . . . [end footnote] . . .

"The Brown decision was NOT based on the 14th amendment" — accurate or not? You decide.

Cool geographical factoids on this subject here (and in the pages linked to in the upper left-hand corner) and here. My favorite: Cooch Behar (a map from when Bangladesh was still East Pakistan, but apparently relatively reliable still).

I'm working on the second edition of Academic Legal Writing, and I'd love to hear any suggestions that readers might have for improvements. Are there any new items that you think I should add? Any errors that need to be fixed? Please let me know, at volokh at law.ucla.edu. Thanks!

I thought I'd mention to D.C. readers that Sasha will be talking at the American Enterprise Institute next Wednesday (the 26th) from 2 pm to 3:30 pm (at 1150 17th St. NW) about part of his Ph.D. research:

The expansion of products liability law, which has taken place since the 1960s, ostensibly helps workers. Previously barred by workers' compensation laws from bringing suits against manufacturers of defective products, workers can now sue for recovery from job injuries caused by these products. Research by Alexander (Sasha) Volokh of Harvard University indicates, however, that workers pay for this option in the form of reduced wages. Volokh's research highlights the need to consider the impact of liability system reforms on the entire economy before implementing reforms.

The talk is free and open to the public, though I think you need to register here.

UPDATE: I originally erroneously said Sasha would be speaking this Wednesday -- actually, he'll be speaking next Wednesday (the 26th); I've updated the post accordingly.

Another Paul Craig Roberts response:
As you may recall, I began this thread by criticizing Paul Craig Roberts on two main grounds:

He seems to praise decisions -- or call for decisions -- that strike down "racial quotas and preferences" that hurt whites. But he condemns as "government by judges" Brown v. Board of Education, which struck down racial quotas and preferences that hurt blacks.

He routinely uses language that seems to suggest that race and sex preferences are recent innovations, created to burden whites and men, and doesn't acknowledge that in fact race and sex preferences have long existed under American law, generally hurting nonwhites and women. My original post pointed to language such as "Brown ushered in inequality before the law with the racial quotas and preferences that followed in its wake," and (from an earlier column) "[the] essential feature [of the original U.S. Constitution] -- equality in law -- has been replaced by differential group rights based on skin color, gender, disability and, sooner or later, sexual orientation." My follow-up post pointed to Roberts' response that "Despite Plessy, the ruling doctrine still held people, rich, poor, black or white, to be equal under the law. After the civil rights revolution, this is no longer the case. There are now legal preferences based on race and gender."
In fact, inequality before the law, racial quotas and preferences, and differential group rights based on skin, color, gender, disability, and sexual orientation long existed under the original U.S. constitution -- and most certainly during the Plessy era. For all its faults, the civil rights movement helped diminish these quotas, preferences, and differential group rights. I'm quite troubled by Dr. Roberts' general failure to acknowledge this past discrimination against nonwhites, women, and other groups, and to talk as if race and sex discrimination were "ushered in" by -- in the sense of being a new development caused by -- the civil rights movement.

Then, I went on to criticize Dr. Roberts' response to my piece on another point: He claims that he endorses Justice Harlan's dissent in Plessy v. Ferguson, which would have prohibited racial segregation in 1896 -- but he harshly denounces as "government by judges" Brown v. Board of Education, which prohibited racial segregation in 1954.
Dr. Roberts now responds again in an e-mail to me:

I have read your response. You conflate many issues, and you avoid my points that Brown substituted coercion for persuasion and good will and established rule by judges. Justice Stanley Reed, who was a party to the Brown decision, explicitly referred to it as "kritarchy." Just because you don't understand doesn't mean that the justices did not understand.
Your approach to reform is ahistorical. You seem to think that societies should be born morally perfect by the standards of later centuries. For example, you go on about women not having the vote as a legally imposed inequality. But of course, societies had not thought
of women having the vote. When they were ready for women to have the vote, it was done without Supreme Court coercion.
Your notion of race and sex preferences is not a legal one. No Supreme Court ever ruled that men were legally privileged and women were legally inferior or that whites were more equal than blacks. Plessy's ruling was separate but equal. Plessy did not rule that blacks were inferior and therefore consigned to inferior status. When the Supreme Court permitted racial segregation under Louisiana law regulating public transportation in Plessy v. Ferguson in 1896, it did so on the grounds that the state law required equal facilities and that separate accommodation was a social convention, akin to earlier "ladies' cars"
on public trains, that did not apply "to nurses attending children of the other race" and did "not necessarily imply the inferiority of either race to the other." In other words, even segregationists had to accept equality before the law as the operative de jure principle. In his famous dissent, Justice Harlan was concerned that the Louisiana
law would allow class distinctions to enter the legal system in the form of race distinctions. The Louisiana law was particularly dangerous because blacks and whites were economically as well as racially distinct. Thus, racial distinctions were also class distinctions. Harlan was certain that he wanted no status-based distinctions in the law.
Your fundamental error in your response to my article is that you confuse the historical development of society with abstract legal principles. Prior to the "civil rights revolution," status-based legal privileges or group rights were considered to be a feature of pre-modern feudalism. They were the antithesis of equality before the law.
Now they are upheld as evidenced by the recent Michigan case.

It seems to me that this response suffers from the same problems that I identified.
1. I continue to be mystified by how Dr. Roberts can reconcile his praise of judges' trying to ban race discrimination in education in Hopwood with his strident denunication of judges' trying to ban race discrimination in education in Brown.
2. Prior to the "civil rights revolution," "status-based legal privileges or group rights" were routine in the law. Women were by law barred from certain professions. Blacks were by law excluded from white-only schools (which were often given much more funding by the government than were schools for blacks), white-only railway cars, and more. (Of course, before 1868, blacks were excluded from even more important things.) The privilege of going to the white-only institutions was a "status-based legal privilege[]" given to whites.
Government officials routinely discriminated based on race and sex in hiring, education, and the like. (Note that today's race preferences in admissions are likewise discrimination by executive officials, so if Dr. Roberts sees inequality before the law only in legislative race-based classifications, rather than discrimination by executive officials, then he should have no problem with modern race-based admissions policies.) All this indeed was "the antithesis of equality before the law." But it was nonetheless what happened.
Now I have no wish to demonize all people of earlier eras for their failings in this respect. Some of them did the best they could given their limitations, and many of them had virtues that exceeded their vices in this area. (Jefferson and Washington surely can be faulted for owning slaves, especially since many people of that era had realized that slavery was immoral; but we rightly praise them for their other merits, even though we condemn them for their errors on this score.) I surely do not expect them to have been "morally perfect." But I don't think we should whitewash those eras, either, by pretending that race- and gender-based legal rights are somehow a modern invention.
3. Finally, Dr. Roberts starts by reiterating that "Brown substituted coercion for persuasion and good will and established rule by judges" -- and yet in his earlier message he wrote "I agree with Justice Harlan's dissent to the Plessy decision." But Justice Harlan's dissent, just as much as the Brown majority, took the view that the Constitution prohibits racial segregation, and that judges have an obligation to enforce this prohibition through the "coercion" of court orders rather than just through "persuasion and good will." Segregation, Justice Harlan wrote, "may be stricken down . . . by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding." So how is Justice Harlan's position permissible, but the Brown majority's position somehow reprehensible? Dr. Roberts continues not to answer this.

I got lots of responses to this puzzle, and many involved some quite interesting little corners of the world, where tendrils of one country snake a long distance into another. Nonetheless, I've come to think (together with reader Rich Rostrom, who also recommended this) that for the puzzle to be especially esthetically pleasing — an obviously highly subjective judgment — we have to somehow eliminate the micro-concavities, such as the ones shown on this Brunei map (thanks to Julia Bauder), the ones on this Tajikistan map (thanks to Kenneth Hahn), or the ones that Heinrich Foltz noted as to a portion of the Ireland / Northern Ireland border. So I suggest that the requirement be that the two points be at least 15 miles apart by the short route, which includes my favorite answer (Gambia as a concavity inside Senegal) but excludes the tiny ones. Here's Rich Rostrom's take on this:

There are little tiny wiggles in some national borders that have very high base-to-depth ratios, but they're tiny: horseshoe bends in rivers, and such. If these were allowed, the contest would in effect be for the narrowest base, something hard to determine off maps of any but the largest scale. (Some of these mini-bulges are less than a km across at the base.)

On the large scale, Senegal/Gambia is a good candidate. Using this map I arrived at a ratio of 16.5. (The base is at the inside corner where the southern border jogs north.)

I looked at some other African boundaries:

Malawi and Mozambique (with the base cutting across Lake Nyasa) [and] Congo and Zambia[, but] they came in rather lower (6.68 and 8.09).

I looked at India/Bangladesh (West Bengal to Tripura). The base is wide, and the ratio is only 4.70.

I considered the intricate mess that Stalin made of central Asia, between Kyrgyzstan, Tajikstan, and Uzbekistan. But it appears that all the protrusions have fairly wide bases.

At a smaller scale, I considered Brunei-Malaysia. Brunei consists of two enclaves on the west and south sides of Brunei Bay, with a short stretch of Malaysian coast between. The eastern enclave is long and narrow, for a ratio of 8.72.

There is a protrusion of Lithuania into Belarus, SSE of Vilnius. This hernia-like blob is 5 km at the neck and 61 km around, for a respectable ratio of 12.2, but still well below Senegal/Gambia.

Another small scale candidate was Switzerland and Germany (the Schaffhausen canton north of the Rhine.) Schaffhausen has a nice mushroom shape, but the base seems narrower than it is, due to a German enclave there; the ratio is only 5.83.

However, the western lobe of Schaffhausen comes near a north-of-the-Rhine extension of Zurich canton, with a wedge of Germany between. The gap at the base of the wedge is only 1.3 km across, yet to get from the Swiss territory north of the gap to the Swiss territory south of the gap, travelling through Switzerland only, one must go 33.6 km, for a ratio of 25.9.

I think that may be the record. Though it does approach the smallest-possible-base type of concavity. [This] shows the neck. [This] shows the region.

Here's an excerpt from an NPR story I heard yesterday evening; anchor Linda Werheimer is speaking to reporter Anthony Brooks. The story was presented as coverage of a news event, not as an opinion piece:

BROOKS: . . . Nationally, tomorrow will be the starting point of what will likely be a series of court challenges. Out-of-staters who get married here will take their marriages back to their home states, and at least a few of them will demand that their marriages are recognized back home. And some 38 states have so-called Defense of Marriage Acts, but that would conflict with constitutional provisions that recognize contracts and agreements from state to state. So all of this will end up in the courts in the years to come before it's all sorted out.

Now as it happens there's a hot debate about whether state Defense of Marriage Acts are unconstitutional. Many opponents of same-sex marriage and many supporters argue that the state DOMAs and the federal DOMA are quite constitutional. Some supporters of same-sex marriage make this a major part of the argument: There's no need to enact a Federal Marriage Amendment, they say, because it's right for each state to decide whether to recognize same-sex marriages (both in-state and out-of-state marriages), and existing law allows states to do this. Some supporters of same-sex marriage argue the contrary, and say that the DOMAs are indeed unconstitutional, and the Full Faith and Credit Clause mandates recognition of out-of-state marraiges. (Some opponents of same-sex marriage argue that such a result is possible and the Federal Marriage Amendment is therefore necessary, but I've heard no such opponents argue that the result is indeed correct and that the DOMAs are indeed in conflict with the constitution.)

And yet this NPR reporter simply asserts that the DOMAs "would conflict with constitutional provisions" — not that there's a hot debate on the subject, in which even some proponents of same-sex marriage argue that there's no constitutional conflict, but that the laws indeed would conflict with the Constitution. Not particularly objective reporting, it seems to me.

Note also that the Full Faith and Credit Clause has never been understood as "recogniz[ing] contracts and agreements from state to state." The text refers to full faith and credit being given to "public Acts, Records, and judicial Proceedings," not to contracts and agreements. There's a debate whether a marriage fits within one of these categories (divorce decrees, which are court orders, generally do). But the debate is made complex in part by the fact that the Clause does not generally mandate interstate recognition of "contracts and agreements."

UPDATE: Reader Stephen Hardwick suggests that the reporter was just misspeaking: "[T]he context indicates momentary carelessness, not bias. While Mr. Brooks was wrong to say that DOMA's 'conflict with constitutional provisions[,]' the next sentence shows he inadvertently left out the word, 'possibly' (or the equivalent). That next sentence states that the effect of the DOMA's would have to be sorted out in the courts 'in the years to come.' If DOMA's were clearly unconstitutional, it would not take years. Unless there is something else in the report that indicates otherwise, it appears Mr. Brooks was correctly saying that the constitutionality of DOMA's is unclear."

I don't think the context is as clear as my correspondent suggests. Even when a law is clearly unconstitutional, it does take years to get it struck down. Add the time it takes to litigate the matter at the trial court level, the time it takes to appeal, the time it takes to petition for review by the state or U.S. Supreme Court, the time it takes for the Supreme Court to resolve the matter, and -- if the U.S. Supreme Court doesn't take the case -- the time it takes for enough lower courts to agree on the issue that the matter is seen as settled, and you're almost certain to have a process that takes many years. Nor do I see anything else in the context that points firmly towards the reporter's misspeaking, rather than deliberately expressing his view. Nonetheless, I do agree that it is indeed possible that the reporter did simply misspeak.

On the basis of my post a while ago musing on the possible unconstitutionality of fast-track trade agreement procedures, I was just solicited to become the token right-leaning "constitutional expert" arguing this in court, on behalf of one of the prominent protectionist interests. As I said at the time,

I'd truly hate to see my argument carry the day in court, because it would knock the U.S. out of the trade-agreement business, possibly for a long time.

The person I spoke with was very pleasant and personable, and so I tried to be likewise when I said, in so many words, "No, I'd rather not help because I want your side to lose."

Note to self: think of some area of law in which I could get lucrative "expert consultant" fees for a side I support.

for adding a link to my criticism of Paul Craig Roberts -- and his response, also blogged here -- at the top of its copy of Roberts' column. I'm pleased when sites do that sort of thing, which strikes me as generally quite helpful to their readers, and to public debate.

A southwestern Wisconsin man is fighting a civil citation for bringing a sign that read "F U G W" with him as he watched President Bush pass through Platteville last week. . . .

According to [a court] motion, [Frank] Van den Bosch was standing along a street in Platteville on May 7 with his sign waiting for Bush's motorcade to pass. . . . Van den Bosch then changed the sign to say "Free Us G W" and added "End the Occupation" on the back, referring to the war in Iraq.

A few minutes later, another police officer came over and ordered Van den Bosch to surrender the sign. Van den Bosch rolled up his sign and moved to the back of the crowd. He held it up as Bush went by.

Police then handcuffed him and took him to the police station, where he was photographed, fingerprinted, cited $243 for disorderly conduct and released. . . .

Platteville Police Lt. Tom Schmid said a business owner along the street had complained about the sign, and officers thought children might see it. Van den Bosch wrote the letters "r e e" and "s" in tiny print, Schmid said.

"We had to take some action," Schmid said. "If we were wrong, then the citation will be voided and taken care of that way. That's the way the system is supposed to work."

Uh, no. Under the Fourth Amendment, it's unconstitutional for the police to arrest someone unless they have probable cause to believe that he has committed a crime. Under the First Amendment, ever since Cohen v. California (1971) -- which upheld Cohen's right to wear a jacket with the words "Fuck the Draft" -- signs containing profanity (even if "F U" were interpreted as a profanity) are constitutionally protected. Carrying such a sign thus can't be a crime; and the police can have no probable cause to believe a crime is committed and thus no right to "take action" by arresting anyone.

The police have an obligation to act constitutionally themselves, and not just leave the matter to the courts (though the courts are of course there to double-check). And while this of course requires the police to know the law -- which is to say the law as modified by the Constitution -- that must be part of their training. Obviously the police department must teach the police what the law is, since otherwise the police can't enforce it. If the department taught the officers that the law bans public profanity on signs, then it taught them wrong. Thirty years after Cohen, there's no excuse for police departments to have their officers arrest people for carrying allegedly profane signs in public.

Louisiana's House Judiciary Committee has recently approved a bill that would outlaw wearing low-slung pants in public:

It shall be unlawful for any person to appear in public wearing his pants below his waist and thereby exposing his skin or intimate clothing.

Now I agree that it's proper to regulate some public behavior on the grounds that it's offensive to passersby, especially because of its sexual suggestiveness -- and so do you unless you think that people should be free to have sex on the street corner. Even libertarians might, I think, take the view that so long as we have publicly owned common property, some such restrictions may properly be imposed on it in the interest of preserving it as an enjoyable place for the maximum number of users. (Consider also bans on public urination, which I believe are chiefly esthetic measures rather than health measures.) I do think this law goes too far, especially given that it authorizes a punishment of up to six months in jail ("And what are you in for?" "Third strike illegal pants-wearing."), but I can see the contrary view.

I also understand that the legislature understandably focuses on problems (or perceived problems) that currently exist, rather than the purely hypothetical ones.

Still, it seems to me a bit odd that, if this law passes, it would be illegal to wear low-riding pants that show your underwear -- but perfectly legal to take off those pants and just walk around in the underwear.

Sunday, May 16, 2004

Sunday Song Lyric:
Sometimes I pause to reflect how the events of September 11 have changed American culture. The reverberations of that event will continue for quite some time, if not forever. Consider, for example, what is acceptable humor. It's graduation season. Were it not for the attack on the World Trade Center thirty two months ago, high school and college graduates-to-be might be listening to "If I Were a Terrorist (I'd Bomb Your Graduation)" by Something Corporate.

She's out of school again
But she won't be calling from where she is going
the lines are jammed this time
what could a girl like her need with a slacker like me

If I were a terrorist
I'd bomb your graduation
If I were a terrorist
there'd be no hesitation

So I'm going on tour with the band
She said "stay for the summer" but she don't understand
That the radio plays what they want you to hear
and I want them to play you your love song this year

If I were a terrorist
I'd bomb your graduation
If I were a terrorist
there'd be no hesitation
The cameras are flashing
Her black robe is passing
and there I am chilled to my bones
This is the year my girlfirend's leaving home

She'll probably end up with a frat guy
She'll probably get pinned while I sleep in the van
I'm sure she'll be home for thanksgiving
I'll send her a picture of me making out with a fan . . .
And . . .

If I were a terrorist
I'd bomb you're graduation
If I were a terrorist
there'd be no hesitation
The cameras are flashing
Her black robe is passing
and there I am chilled to my bones

This is the year my girlfirend's leaving
this is the year my girlfriend's leaving
this is the year my girlfriend's leaving
home

I take it the song was written as an absurdist and amusing, angst-filled teen lament. Today, however, it is simply in bad taste. Indeed, enjoying such a song is now almost unthinkable. Post-September 11, as I understand it, SoCo stopped playing the song at concerts and dropped their plans to include the song on an album. At this point, it is hard to believe the song will ever be released.

The Disaster Movie Without Facts:Patrick Michaels explains why "The Day After Tomorrow" should be called "The Climate Disaster Movie Without Factual Basis" in today's Washington Post. Apparently the implausibility of the climatic disaster pictured in the movie has not stopped Al Gore and MoveOn.org from promoting the film, nor has it prevented The Guardian from claiming movie-inspired fears of global warming could swing the election to John Kerry.

Update:Some readers have noted that the NYT story linked above does not explicitly say that Al Gore was promoting "The Day After Tomorrow." It does, however, note that his comments were delivered during a press conference call sponsored by MoveOn.org, and the MoveOn site is clearly promoting the film. But, in case there is any doubt, this AP story makes it clear the former Vice President is promoting the film.

The army has (not surprisingly) an extensive checklist for what constitutes "ready" or not. It's actually a graduated readiness appraisal, not a binary go/no-go rating.

Divisions are rated at C1 to C4. C3 means it can perform only some of its combat missions, and C4 means it may need additional manpower.

This is normal and expected for divisions coming back from deployment. Equipment needs to be overhauled, NCOs and officers need to go off to schools for training, etc.

The army used to use the individual replacement system in Vietnam and WWII, which meant that a unit like the 1st Cavalry division might stay deployed in Vietnam for years while individuals roated in for a one year tour. It was a disaster from a unit cohesion standpoint, since people don't fight well when they're placed with strangers or led by strangers. So the army is keeping whole units together for a full deployment, then rebuilding the unit after it comes back. This typically takes about 4-6 months.

Reader James Killmond writes:

The L.A. Times is using Army readiness reports to hang its story on. Army units have to file readiness reports. The Pentagon and all the higher-ups need to know whether the military assets they control can be used. No surprise there.

In peacetime, meeting readiness criteria is largely within the commander's control. With proper planning and budgeting, the commander should have little problem conducting the necessary training, maintaining the equipment, etc. Accordingly, failing to meet the criteria and having to report that a unit is unfit almost never happens because it tends to be a career-ender for the commander.

This is all different in wartime, of course. Equipment is used much more severely when deployed in combat than it is when used in training. Maintenance and training are still conducted, but have to be balanced with real missions. At some level, Army units in combat cannot maintain readiness indefinitely. Even if they are successful in combat, periods of rotation and refit are necessary. Our current Army is not well-sized for this, and some wear is inevitable. Spending more money on equipment would help and is probably being done. However, the L.A. Times would have to do a lot more reporting, not just reading readiness reports, before it could be concluded that there is a real problem.

As you note, in other conflicts U.S. Army units have sustained much higher casualty levels without losing effectiveness. The 101st is famous for its steadfastness. In the WWII battle of Bastogne that killed thousands, the completely encircled commander of the 101st, Gen. McAuliffe, had this response to a German surrender demand: "Nuts!". I would be skeptical of reports that the 101st isn't maintaining its usual morale.

Reader Rob Crowley writes:

As a former Special Forces major and current 1L, I'm probably in a unique position to answer your questions on the story about the 101st. As you correctly surmise, the correct answer is both 1 and 3--it is always like this, and the LA Times is actively spinning. That the LA Times is eager to paint our military situation as darkly as possible is probably not a big surprise.

Virtually every time a unit returns from a deployment it finds itself in the same situation--in need of retraining and an equipment refit. Training and operations wear out both. That's true whether the deployment is a couple of weeks in Panama, three months in the Balkans, or a year of combat in the desert. Men and equipment both need recovery time before they are ready to get back in the fight. That's just the nature of the beast. Of course, sand does play hell on kit, but I don't really think that's the point the LA Times was trying to get across.